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<SEC-DOCUMENT>0000950152-02-005732.txt : 20020730
<SEC-HEADER>0000950152-02-005732.hdr.sgml : 20020730
<ACCEPTANCE-DATETIME>20020729184715
ACCESSION NUMBER: 0000950152-02-005732
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 12
CONFORMED PERIOD OF REPORT: 20020501
FILED AS OF DATE: 20020730
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HEINZ H J CO
CENTRAL INDEX KEY: 0000046640
STANDARD INDUSTRIAL CLASSIFICATION: CANNED, FROZEN & PRESERVED FRUIT, VEG & FOOD SPECIALTIES [2030]
IRS NUMBER: 250542520
STATE OF INCORPORATION: PA
FISCAL YEAR END: 0430
FILING VALUES:
FORM TYPE: 10-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-03385
FILM NUMBER: 02713716
BUSINESS ADDRESS:
STREET 1: 600 GRANT ST
CITY: PITTSBURGH
STATE: PA
ZIP: 15219
BUSINESS PHONE: 4124565700
MAIL ADDRESS:
STREET 1: P O BOX 57
STREET 2: P O BOX 57
CITY: PITTSBURGH
STATE: PA
ZIP: 15230
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<FILENAME>j9491701e10vk.txt
<DESCRIPTION>FORM 10-K
<TEXT>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended May 1, 2002
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from __________ to __________
Commission File Number 1-3385
H. J. HEINZ COMPANY
(Exact name of registrant as specified in its charter)
<Table>
<S> <C>
PENNSYLVANIA 25-0542520
(State of Incorporation) (I.R.S. Employer Identification No.)
600 GRANT STREET, PITTSBURGH, PENNSYLVANIA 15219
(Address of principal executive offices) (Zip Code)
</Table>
412-456-5700
(Registrant's telephone number)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
<Table>
<Caption>
Title of each class Name of each exchange on which registered
------------------- -----------------------------------------
<S> <C>
Common Stock, par value $.25 per share New York Stock Exchange;
Pacific Exchange
Third Cumulative Preferred Stock, $1.70 First
Series, par value $10 per share New York Stock Exchange
</Table>
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
None.
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No _
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of the Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
As of June 30, 2002 the aggregate market value of the Registrant's voting
stock held by non-affiliates of the Registrant was approximately
$12,724,676,765.
The number of shares of the Registrant's Common Stock, par value $.25 per
share, outstanding as of June 30, 2002, was 350,946,092 shares.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of Registrant's Annual Report to Shareholders for the fiscal year
ended May 1, 2002 are incorporated into Part I, Item 1; Part II, Items 5, 7, 7A
and 8; and Part IV, Item 14.
Portions of Registrant's Proxy Statement for the Annual Meeting of
Shareholders to be held on September 12, 2002, which will be filed with the
Securities and Exchange Commission within 120 days after the end of the
Registrant's fiscal year ended May 1, 2002, are incorporated into Part III,
Items 10, 11, 12 and 13.
<PAGE>
PART I
ITEM 1. BUSINESS.
H. J. Heinz Company was incorporated in Pennsylvania on July 27, 1900. In
1905, it succeeded to the business of a partnership operating under the same
name which had developed from a food business founded in 1869 at Sharpsburg,
Pennsylvania by Henry J. Heinz. H. J. Heinz Company and its subsidiaries
(collectively, the "Company") manufacture and market an extensive line of
processed food products throughout the world. The Company's principal products
include ketchup, condiments and sauces, frozen food, pet products, soups, beans
and pasta meals, tuna and other seafood products, infant food and other
processed food products.
The Company's products are manufactured and packaged to provide safe,
wholesome foods for consumers, foodservice and institutional customers. Many
products are prepared from recipes developed in the Company's research
laboratories and experimental kitchens. Ingredients are carefully selected,
washed, trimmed, inspected and passed on to modern factory kitchens where they
are processed, after which the finished product is filled automatically into
containers of glass, metal, plastic, paper or fiberboard which are then closed,
processed, labeled and cased for market. Finished products are processed by
sterilization, homogenization, chilling, freezing, pickling, drying, freeze
drying, baking or extruding. Certain finished products and seasonal raw
materials are aseptically packed into sterile containers after in-line
sterilization.
The Company manufactures its products from a wide variety of raw foods.
Pre-season contracts are made with farmers for a portion of raw materials such
as tomatoes, cucumbers, potatoes, onions and some other fruits and vegetables.
Dairy products, meat, sugar, spices, flour and certain other fruits and
vegetables are generally purchased on the open market.
Tuna is obtained through spot and term contracts directly with tuna vessel
owners or their cooperatives and by brokered transactions. In some instances, in
order to ensure the continued availability of adequate supplies of tuna, the
Company assists, directly or indirectly, in financing the acquisition and
operation of fishing vessels. The provision of such assistance is not expected
to affect materially the operations of the Company.
The Marine Mammal Protection Act of 1972, as amended (the "Act"), and
regulations thereunder (the "Regulations") regulate the incidental taking of
dolphin in the course of fishing for yellowfin tuna in the eastern tropical
Pacific Ocean, where a portion of the Company's light-meat tuna is caught. In
1990, the Company voluntarily adopted a worldwide policy of refusal to purchase
tuna caught in the eastern tropical Pacific Ocean through the intentional
encirclement of dolphin by purse seine nets and reaffirmed its policy of not
purchasing tuna caught anywhere using gill nets or drift nets. Also in 1990, the
Dolphin Protection Consumer Information Act (the "Dolphin Information Act") was
enacted which regulates the labeling of tuna products as "dolphin safe" and bans
the importation of tuna caught using high seas drift nets. The Act was amended
in 1992 to further regulate tuna fishing methods which involve marine mammals.
Compliance with the Act, the Regulations, the Dolphin Information Act, and the
Company's voluntary policy and the 1992 amendments has not had, and is not
expected to have, a material adverse effect on the Company's operations.
Congress passed the International Dolphin Conservation Program Act ("IDCPA") on
August 15, 1997. It modified the regulation of the incidental taking of dolphins
in the course of fishing for yellowfin tuna in the eastern tropical Pacific
Ocean and revised the definition of "dolphin safe." Revision of the definition
of "dolphin safe" and modification of the regulation of the incidental taking of
dolphins in the course of fishing for yellowfin tuna in the eastern tropical
Pacific Ocean have not had and are not expected to have a material adverse
effect on the Company's operations.
In recent years, the supply of raw tuna has been variable, causing a
fluctuation in raw fish prices; however, such variation in supply has not
affected materially, nor is it expected to affect materially, the Company's
operations.
2
<PAGE>
The following table lists the number of the Company's principal food
processing factories and major trademarks by business segment:
<Table>
<Caption>
Factories
--------------
Owned Leased Major Trademarks
----- ------ ----------------
<S> <C> <C> <C>
North America 29 6 Heinz, College Inn, StarKist, Classico, Quality
Chef, Yoshida, Jack Daniels*, Catelli, Wyler's,
E-Z Squirt, Diana Sauce, Bell 'Orto, Bella Rosa,
Pablum, Chef Francisco, Domani, Omstead, 9-Lives,
Kibbles n' Bits, Ken-L-Ration, Reward, Gravy
Train, Skippy, Nature's Recipe, Pounce,
Snausages, Jerky Treats, Pup-Peroni, Wagwells,
Techni-cal, Medi-cal, Meaty Bone, Ore-Ida, Bagel
Bites, Moore's, Rosetto, Weight Watchers*, Boston
Market*, Smart Ones, Hot Bites, Poppers, TGI
Friday's*, Delimex
Europe 32 4 Heinz, Petit Navire, John West, Mare D'Oro,
Mareblu, Marie Elisabeth, Orlando, Guloso, San
Marco, Linda McCartney*, Weight Watchers*,
Farley's, Farex, Sonnen Basserman, Plasmon,
Nipiol, Dieterba, Ortobuono, Frank Coopers*,
Pudliszki, Go Ahead!*, Ross, Hak, Honig, De
Ruijter
Asia/Pacific 16 5 Heinz, Tom Piper, Wattie's, ABC, Tegel, Chef,
Champ, Craig's, Bruno, Winna, Hellaby, Hamper,
Farley's, Greenseas, Gourmet, Nurture, Complan,
Farex
Other Operating Entities 6 3 Heinz, StarKist, Olivine, Wellington's, Ganave,
Champs, Royal Pacific, 9-Lives, Pounce, Kibbles
n' Bits, Super Can
-- --
83 18 * Used under license
</Table>
The Company also owns or leases office space, warehouses, distribution
centers and research and other facilities throughout the world. The Company's
food processing plants and principal properties are in good condition and are
satisfactory for the purposes for which they are being utilized.
The Company has participated in the development of certain of its food
processing equipment, some of which is patented. The Company regards these
patents as important but does not consider any one or group of them to be
materially important to its business as a whole.
Although crops constituting some of the Company's raw food ingredients are
harvested on a seasonal basis, most of the Company's products are produced
throughout the year. Seasonal factors inherent in the business have always
influenced the quarterly sales and net income of the Company. Consequently,
comparisons between quarters have always been more meaningful when made between
the same quarters of different years.
The products of the Company are sold under highly competitive conditions,
with many large and small competitors. The Company regards its principal
competition to be other manufacturers of processed foods, including branded,
retail products, foodservice products and private label products, that compete
with the Company for consumer preference, distribution, shelf space and
merchandising support. Product quality and consumer value are important areas of
competition.
The Company's products are sold through its own sales force and through
independent brokers, agents and distributors to chain, wholesale, cooperative
and independent grocery accounts, pharmacies, mass merchants, club stores, pet
stores, foodservice distributors and institutions,
3
<PAGE>
including hotels, restaurants and certain government agencies. For Fiscal 2002,
Wal-Mart Stores, Inc. represented more than 10% of the Company's sales.
Compliance with the provisions of national, state and local environmental
laws and regulations has not had a material effect upon the capital
expenditures, earnings or competitive position of the Company. The Company's
estimated capital expenditures for environmental control facilities for the
remainder of fiscal year 2003 and the succeeding fiscal year are not material
and will not materially affect either the earnings or competitive position of
the Company.
The Company's factories are subject to inspections by various governmental
agencies, including the United States Department of Agriculture, and the
Occupational Health and Safety Administration, and its products must comply with
the applicable laws, including food and drug laws, such as the Federal Food and
Cosmetic Act of 1938, as amended, and the Federal Fair Packaging or Labeling Act
of 1966, as amended, of the jurisdictions in which they are manufactured and
marketed.
The Company employed, on a full-time basis as of May 1, 2002, approximately
46,500 persons around the world.
Segment information is set forth on pages 71 through 73 in Note 14 to the
Company's Annual Report to Shareholders for the fiscal year ended May 1, 2002.
Such information is incorporated herein by reference.
Income from international operations is subject to fluctuation in currency
values, export and import restrictions, foreign ownership restrictions, economic
controls and other factors. From time to time exchange restrictions imposed by
various countries have restricted the transfer of funds between countries and
between the Company and its subsidiaries. To date, such exchange restrictions
have not had a material adverse effect on the Company's operations.
CAUTIONARY STATEMENT RELEVANT TO FORWARD-LOOKING INFORMATION
The Private Securities Litigation Reform Act of 1995 (the "Act") provides a
safe harbor for forward-looking statements made by or on behalf of the Company.
The Company and its representatives may from time to time make written or oral
forward-looking statements, including statements contained in the Company's
filings with the Securities and Exchange Commission and in its reports to
shareholders. These forward-looking statements are based on management's views
and assumptions of future events and financial performance. The words or phrases
"will likely result," "are expected to," "will continue," "is anticipated,"
"should," "estimate," "project," "target," "goal" or similar expressions
identify "forward-looking statements" within the meaning of the Act.
In order to comply with the terms of the safe harbor, the Company notes
that a variety of factors could cause the Company's actual results and
experience to differ materially from the anticipated results or other
expectations expressed in the Company's forward-looking statements. These
forward-looking statements are uncertain. The risks and uncertainties that may
affect operations and financial performance and other activities, some of which
may be beyond the control of the Company, include the following:
- Changes in laws and regulations, including changes in food and drug laws,
accounting standards, taxation requirements (including tax rate changes,
new tax laws and revised tax law interpretations) and environmental laws
in domestic or foreign jurisdictions;
- Competitive product and pricing pressures and the Company's ability to
gain or maintain share of sales in the global market as a result of
actions by competitors and others;
- Fluctuations in the cost and availability of raw materials and the
ability to maintain favorable supplier arrangements and relationships;
- The impact of higher energy costs and other factors on the cost of
producing, transporting and distributing the Company's products;
- The Company's ability to generate sufficient cash flows to support
capital expenditures, share repurchase programs, debt repayment and
general operating activities;
4
<PAGE>
- The inherent risks in the marketplace associated with new product or
packaging introductions, including uncertainties about trade and consumer
acceptance;
- The Company's ability to achieve sales and earnings forecasts, which are
based on assumptions about sales volume, product mix and other items;
- The Company's ability to integrate acquisitions and joint ventures into
its existing operations and the availability of new acquisition and joint
venture opportunities and the success of divestitures and other business
combinations;
- The Company's ability to achieve its cost savings objectives, including
any restructuring programs and its working capital initiative;
- The impact of unforeseen economic and political changes in international
markets where the Company competes, such as currency exchange rates,
(notably with respect to the euro and the pound sterling) inflation
rates, recession, foreign ownership restrictions and other external
factors over which the Company has no control;
- Interest rate fluctuations and other capital market conditions;
- The effectiveness of the Company's advertising, marketing and promotional
programs;
- Weather conditions, which could impact demand for Company products and
the supply and cost of raw materials;
- The impact of e-commerce and e-procurement, supply chain efficiency and
cash flow initiatives;
- The Company's ability to maintain its profit margin in the face of a
consolidating retail environment;
- The impact of global industry conditions, including the effect of the
economic downturn in the food industry and the foodservice business in
particular;
- The Company's ability to offset the reduction in volume and revenue
resulting from participation in categories experiencing declining
consumption rates;
- With respect to the proposed spin-off and merger between the Company's
U.S. and Canadian pet food and pet snacks, U.S. tuna, U.S. retail private
label soup and gravy, College Inn broth and U.S. infant feeding
businesses, and a wholly-owned subsidiary of Del Monte Foods Company
("Del Monte,") the ability to obtain required third party consents,
regulatory and Del Monte shareholders' approval, including a private
letter ruling from the Internal Revenue Service, and the success of
business integration in a timely and cost effective manner; and
- With respect to future dividends on Company stock, meeting certain legal
requirements at the time of declaration.
The foregoing list of important factors is not exclusive. The
forward-looking statements are and will be based on management's then current
views and assumptions regarding future events and operating performance and
speak only as of their dates. The Company undertakes no obligation to publicly
update or revise any forward-looking statements, whether as a result of new
information, future events or otherwise.
ITEM 2. PROPERTIES.
See table in Item 1.
ITEM 3. LEGAL PROCEEDINGS.
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company has not submitted any matters to a vote of security holders
since the last annual meeting of shareholders on September 20, 2001.
5
<PAGE>
EXECUTIVE OFFICERS OF THE REGISTRANT
The following is a list of the names and ages of all of the executive
officers of H. J. Heinz Company indicating all positions and offices held by
each such person and each such person's principal occupations or employment
during the past five years. All the executive officers have been elected to
serve until the next annual election of officers or until their successors are
elected, or until their earlier resignation or removal. The annual election of
officers is scheduled to occur on September 12, 2002.
<Table>
<Caption>
Positions and Offices Held with the Company and
Age (as of Principal Occupations or
Name September 12, 2002) Employment During Past Five Years
---- ------------------- -----------------------------------------------
<S> <C> <C>
William R. Johnson 53 Chairman, President, and Chief Executive
Officer since September 2000; President and
Chief Executive Officer from April 1998 to
September 2000; President and Chief Operating
Officer from June 1996 to April 1998.
Neil Harrison 49 Executive Vice President and President and
Chief Executive Officer--Heinz North America
since July 2002; Senior Vice President and
President--Heinz Frozen Food Company from
September 2001 to July 2002; President and
Chief Executive Officer--Heinz Frozen Food
Company from October 1998 to September 2001;
President and Chief Executive Officer--Weight
Watchers Gourmet Food Company from August 1997
to October 1998.
Joseph Jimenez 42 Executive Vice President--President and Chief
Executive Officer Heinz Europe since July 2002;
Senior Vice President and President--Heinz
North America from September 2001 to July 2002;
President and Chief Executive Officer--Heinz
North America from November 1998 to September
2001; President--Orville Redenbacher/Swiss Miss
Food Company and Wesson/Peter Pan Food Company
from March 1997 to November 1998.
Richard H. Wamhoff* 56 Executive Vice President--Asia/Pacific and
Global Manufacturing/Supply Chain since August
2000; Executive Vice President--Global
Manufacturing/Supply Chain and Frozen Foods
from May 1998 to August 2000; President and
Chief Executive Officer--Ore-Ida Foods, Inc.
from May 1993 to May 1998.
David R. Williams* 59 Executive Vice President since August 2000;
President and Chief Operating Officer--Europe,
Middle East, Africa and India from August 2000
to July 2002; Executive Vice President from
June 1996 to August 2000.
* Messrs. Wamhoff and Williams have announced their intention to retire in September 2002.
</Table>
6
<PAGE>
<Table>
<Caption>
Positions and Offices Held with the Company and
Age (as of Principal Occupations or
Name September 12, 2002) Employment During Past Five Years
---- ------------------- -----------------------------------------------
<S> <C> <C>
Arthur Winkleblack 45 Executive Vice President and Chief Financial
Officer since January 2002; Acting Chief
Operating Officer--Perform.com and Chief
Executive Officer--Freeride.com at Indigo
Capital (Provides financing for early stage
technology companies) (1999-2001); Executive
Vice President and Chief Financial Officer--C.
Dean Metropoulos & Co. (Provides management
services for consumer products investment of
Hicks, Muse, Tate & Furst) (1998-1999); Chief
Financial Officer--Six Flags Entertainment
Corporation (1996-1998).
Michael J. Bertasso* 52 Senior Vice President--Strategy, Process and
Business Development since May 1998; Executive
Vice President--Star-Kist Foods, Inc. from July
1996 to May 1998.
William C. Goode* 61 Senior Vice President and Chief Administrative
Officer since May 2000; Vice President and
Chief Administrative Officer from May 1998 to
April 2000; Vice President--Operations of Heinz
Pet Products from October 1996 to May 1998.
Michael D. Milone 46 Senior Vice President--Chief Growth Officer
since July 2002; Chief Executive Officer Star-
Kist Foods, Inc. since May 2001; Senior Vice
President--Global Category Development since
May 2000; Vice President--Global Category
Development from August 1998 to May 2000;
President and Chief Operating Officer of Heinz
Pet Products from July 1996 to August 1998.
D. Edward I. Smyth* 52 Senior Vice President--Corporate and Government
Affairs since May 1998; Vice
President--Corporate Affairs from March 1990 to
May 1998.
Laura Stein 40 Senior Vice President and General Counsel since
January 2000; attorney at The Clorox Company
from 1992-1999, last serving as Assistant
General Counsel--Regulatory Affairs.
* Effective September 1, 2002, Mr. Bertasso will be promoted to Senior Vice President--
President Heinz Asia/Pacific. Mr. Goode has announced his intention to retire in December
2002. Effective January 2003, Mr. Smyth will assume the title of Chief Administrative
Officer.
</Table>
7
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
Information relating to the Company's common stock is set forth on page 47
under the caption "Stock Market Information" and on page 73 in Note 15,
"Quarterly Results (Unaudited)," of the Company's Annual Report to Shareholders
for the fiscal year ended May 1, 2002. Such information is incorporated herein
by reference.
ITEM 6. SELECTED FINANCIAL DATA.
The following table presents selected consolidated financial data for the
Company and its subsidiaries for each of the five fiscal years 1998 through
2002. All amounts are in thousands except per share data.
<Table>
Fiscal year ended
---------------------------------------------------------------
May 1, May 2, May 3, April 28, April 29,
2002 2001 2000 1999 1998
(52 Weeks) (52 Weeks) (53 Weeks) (52 Weeks) (52 Weeks)
----------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Sales*..................... $ 9,431,000* $8,820,884* $8,939,416* $9,299,610 $9,209,284
Interest expense........... 294,269 332,957 269,748 258,813 258,616
Net income................. 833,889 478,012 890,553 474,341 801,566
Net income per share--
diluted.................. 2.36 1.36 2.47 1.29 2.15
Net income per share--
basic.................... 2.38 1.37 2.51 1.31 2.19
Short-term debt and current
portion of long-term
debt..................... 702,645 1,870,834 176,575 904,207 339,626
Long-term debt, exclusive
of current portion....... 4,642,968 3,014,853 3,935,826 2,472,206 2,768,277
Total assets............... 10,278,354 9,035,150 8,850,657 8,053,634 8,023,421
Cash dividends per common
share.................... 1.6075 1.545 1.445 1.3425 1.235
</Table>
* Sales for 2002, 2001 and 2000 reflect the adoption of the new EITF guidelines
relating to the classification of consideration from a vendor to a purchaser
of a vendor's products, including both customers and consumers. Amounts
previously reported for 2001 and 2000 were $9,430,422 and $9,407,949,
respectively. SALES FOR 1999 AND 1998 HAVE NOT BEEN ADJUSTED TO REFLECT THE
NEW EITF RECLASSIFICATIONS AS IT IS IMPRACTICABLE TO DO SO.
The 2002 results include net restructuring and implementation costs of
$17.8 million pretax ($0.03 per share) for the Streamline initiative.
The 2001 results include restructuring and implementation costs of $298.8
million pretax ($0.66 per share) for the Streamline initiative, net
restructuring and implementation costs of $288.5 million pretax ($0.52 per
share) for Operation Excel, a benefit of $93.2 million ($0.27 per share) from
tax planning and new tax legislation in Italy, a loss of $94.6 million pretax
($0.19 per share) on the sale of The All American Gourmet business, company
acquisition costs of $18.5 million pretax ($0.03 per share), a loss of $5.6
million pretax ($0.01 per share) which represents the Company's equity loss
associated with The Hain Celestial Group's fourth quarter results which included
charges for its merger with Celestial Seasonings and the after-tax impact of
adopting SAB No. 101 and SFAS No. 133 of $16.9 million ($0.05 per share). See
Notes 3 and 4 to the Consolidated Financial Statements beginning on page 56 of
the Company's Annual Report to Shareholders for the fiscal year ended May 1,
2002.
8
<PAGE>
The 2000 results include net restructuring and implementation costs of
$392.7 million pretax ($0.74 per share) for Operation Excel, a pretax
contribution of $30.0 million ($0.05 per share) to the H. J. Heinz Company
Foundation, costs related to Ecuador of $20.0 million pretax ($0.05 per share),
a gain of $464.6 million pretax ($0.72 per share) on the sale of the Weight
Watchers classroom business and a gain of $18.2 million pretax ($0.03 per share)
on the sale of an office building in the U.K. See Notes 3 and 4 to the
Consolidated Financial Statements beginning on page 58 of the Company's Annual
Report to Shareholders for the fiscal year ended May 1, 2002.
The 1999 results include restructuring and implementation costs of $552.8
million pretax ($1.11 per share) for Operation Excel and costs of $22.3 million
pretax ($0.04 per share) related to the implementation of Project Millennia,
offset by the reversal of unutilized Project Millennia accruals for severance
and exit costs of $25.7 million pretax ($0.04 per share) and a gain of $5.7
million pretax on the sale of the bakery products unit.
The 1998 results include costs of $84.1 million pretax ($0.14 per share)
related to the implementation of Project Millennia, offset by the gain on the
sale of the Ore-Ida frozen foodservice business, $96.6 million pretax ($0.14 per
share).
Note: All earnings per share amounts are presented on an after-tax diluted basis
unless otherwise noted.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
This information is set forth in the Management's Discussion and Analysis
section on pages 31 through 48 of the Company's Annual Report to Shareholders
for the fiscal year ended May 1, 2002. Such information is incorporated herein
by reference.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
This information is set forth in the Management's Discussion and Analysis
section on pages 43 through 45 of the Company's Annual Report to Shareholders
for the fiscal year ended May 1, 2002. Such information is incorporated herein
by reference.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The Consolidated Balance Sheets of the Company and its subsidiaries as of
May 1, 2002 and May 2, 2001 and the related Consolidated Statements of Income,
Shareholders' Equity and Cash Flows for the fiscal years ended May 1, 2002, May
2, 2001 and May 3, 2000 together with the related Notes to Consolidated
Financial Statements, on pages 49 through 75 of the Company's Annual Report to
Shareholders for the fiscal year ended May 1, 2002, are incorporated herein by
reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
There is nothing to be reported under this item.
9
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
Information relating to the Directors of the Company is set forth under the
captions "Election of Directors" and "Additional Information--Section 16
Beneficial Ownership Reporting Compliance" in the Company's definitive Proxy
Statement in connection with its Annual Meeting of Shareholders to be held
September 12, 2002. Such information is incorporated herein by reference.
Information relating to the executive officers of the Company is set forth under
the caption "Executive Officers of the Registrant" in Part I above.
ITEM 11. EXECUTIVE COMPENSATION.
Information relating to executive compensation is set forth under the
caption "Executive Compensation" in the Company's definitive Proxy Statement in
connection with its Annual Meeting of Shareholders to be held September 12,
2002. Such information is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
Information relating to the ownership of equity securities of the Company
by certain beneficial owners and management is set forth under the captions
"Security Ownership of Certain Principal Share Owners" and "Security Ownership
of Management" in the Company's definitive Proxy Statement in connection with
its Annual Meeting of Shareholders to be held September 12, 2002. Such
information is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
Information relating to certain relationships with a beneficial shareholder
and certain related transactions is set forth under the caption "Certain
Business Relationships" in the Company's definitive Proxy Statement in
connection with its Annual Meeting of Shareholders to be held September 12,
2002. Such information is incorporated herein by reference.
10
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
<Table>
<C> <S>
(a)(1) The following financial statements and report included in
the Company's Annual Report to Shareholders for the fiscal
year ended May 1, 2002 are incorporated herein by reference:
Consolidated Balance Sheets as of May 1, 2002 and May 2,
2001
Consolidated Statements of Income for the fiscal years ended
May 1, 2002, May 2, 2001 and May 3, 2000
Consolidated Statements of Shareholders' Equity for the
fiscal years ended May 1, 2002, May 2, 2001 and May 3, 2000
Consolidated Statements of Cash Flows for the fiscal years
ended May 1, 2002, May 2, 2001 and May 3, 2000
Notes to Consolidated Financial Statements
Report of Independent Accountants of PricewaterhouseCoopers
LLP dated June 13, 2002, on the Company's consolidated
financial statements for the fiscal years ended May 1, 2002,
May 2, 2001 and May 3, 2000
(2) The following report and schedule is filed herewith as a
part hereof:
Report of Independent Accountants of
PricewaterhouseCoopers LLP dated June 13, 2002 on the
Company's consolidated financial statement schedule
filed as a part hereof for the fiscal years ended May 1,
2002, May 2, 2001 and May 3, 2000
Consent of Independent Accountants of
PricewaterhouseCoopers LLP dated July 26, 2002 filed as a
part hereof
Schedule II (Valuation and Qualifying Accounts and
Reserves) for the three fiscal years ended May 1, 2002, May
2, 2001 and May 3, 2000
All other schedules are omitted because they are not
applicable or the required information is included herein or
is shown in the consolidated financial statements or notes
thereto incorporated herein by reference.
(3) Exhibits required to be filed by Item 601 of Regulation S-K
are listed below. Documents not designated as being
incorporated herein by reference are filed herewith. The
paragraph numbers correspond to the exhibit numbers
designated in Item 601 of Regulation S-K.
3(i) The Company's Articles of Amendment dated July 13,
1994, amending and restating the Company's amended and
restated Articles of Incorporation in their entirety,
are incorporated herein by reference to Exhibit 3(i)
to the Company's Annual Report on Form 10-K for the
fiscal year ended April 27, 1994.
3(ii) The Company's By-Laws, as amended effective
September 8, 1999 are incorporated herein by reference to
Exhibit 3 to the Company's Quarterly Report on Form
10-Q for the three months ended July 28, 1999.
4. Except as set forth below, there are no instruments
with respect to long-term debt of the Company that involve
indebtedness or securities authorized thereunder
exceeding 10 percent of the total assets of the
Company on a consolidated basis. The Company agrees
to file a copy of any instrument or agreement
defining the rights of holders of long-term debt of
the Company upon request of the Securities and
Exchange Commission.
</Table>
11
<PAGE>
<Table>
<C> <S>
(a) The Indenture between the Company and The First
National Bank of Chicago dated as of July 15, 1992 is
incorporated herein by reference to Exhibit 4(a) to
the Company's Registration Statement on Form S-3
(Reg. No. 333-48017) and the supplements to such
Indenture are incorporated herein by reference to the
Company's Form 8-Ks dated January 27, 1993, March 25,
1998 and July 16, 1998 relating to the Company's
$200,000,000 6 7/8% Notes due 2003, $300,000,000 6%
Notes due 2008 and $250,000,000 6.375% Debentures due
2028, respectively.
(i) The Supplement dated May 3, 2001 to the Indenture
between the Company and The First National Bank of Chicago
dated as of July 15, 1992 is incorporated herein
by reference to Exhibit 4(a)(i) of the Company's
Form 10-K for the fiscal year ended May 2, 2001.
(b) The Indenture between the Company and Bank One,
National Association dated November 6, 2000, is incorporated
herein by reference to Exhibit 4 to the Company's
Quarterly Report on Form 10-Q for the nine months
ended January 31, 2001.
(i) The Supplement dated May 3, 2001 to the Indenture
between the Company and Bank One, National Association dated
as of November 6, 2000 is incorporated herein by
reference to Exhibit 4(b)(i) of the Company's
Form 10-K for the fiscal year ended May 2, 2001.
(c) The Indenture among the Company, H.J. Heinz Finance
Company, and Bank One, National Association dated as of July
6, 2001 relating to the H. J. Heinz Finance Company's
$750,000,000 6.625% Guaranteed Notes due 2011,
$700,000,000 6.00% Guaranteed Notes due 2012 and
$550,000,000 6.75% Guaranteed Notes due 2032.
(d) The Certificate of Designations, Preferences and
Rights of Voting Cumulative Preferred Stock, Series A of H.
J. Heinz Finance Company is incorporated herein by
reference to Exhibit 4 of the Company's Quarterly
Report on Form 10-Q for the three months ended August
1, 2001.
10(a) Management contracts and compensatory plans:
(i) 1986 Deferred Compensation Program for H. J. Heinz
Company and affiliated companies, as amended and restated in
its entirety effective December 6, 1995, is
incorporated herein by reference to Exhibit 10(c)(i)
to the Company's Annual Report on Form 10-K for the
fiscal year ended May 1, 1995.
(ii) H. J. Heinz Company 1984 Stock Option Plan, as
amended, is incorporated herein by reference to Exhibit
10(n) to the Company's Annual Report on Form 10-K
for the fiscal year ended May 2, 1990.
(iii) H. J. Heinz Company 1987 Stock Option Plan, as
amended, is incorporated herein by reference to Exhibit
10(o) to the Company's Annual Report on Form 10-K
for the fiscal year ended May 2, 1990.
(iv) H. J. Heinz Company 1990 Stock Option Plan is
incorporated herein by reference to Appendix A to the
Company's Proxy Statement dated August 3, 1990.
(v) H. J. Heinz Company 1994 Stock Option Plan is
incorporated herein by reference to Appendix A to the
Company's Proxy Statement dated August 5, 1994.
(vi) H. J. Heinz Company Supplemental Executive Retirement
Plan, as amended, is incorporated herein by reference to
Exhibit 10(c)(ix) to the Company's Annual Report on
Form 10-K for the fiscal year ended April 28, 1993.
</Table>
12
<PAGE>
<Table>
<S> <C>
(vii) H. J. Heinz Company Executive Deferred Compensation Plan (as amended and restated on December 27,
2001).
(viii) H. J. Heinz Company Incentive Compensation Plan is incorporated herein by reference to Appendix B
to the Company's Proxy Statement dated August 5, 1994.
(ix) H. J. Heinz Company Stock Compensation Plan for Non-Employee Directors is incorporated herein by
reference to Appendix A to the Company's Proxy Statement dated August 3, 1995.
(x) H. J. Heinz Company 1996 Stock Option Plan is incorporated herein by reference to Appendix A to
the Company's Proxy Statement dated August 2, 1996.
(xi) H. J. Heinz Company Deferred Compensation Plan for Directors is incorporated herein by reference
to Exhibit 10(a)(xiii) to the Company's Annual Report on Form 10-K for the fiscal year ended April
29, 1998.
(xii) H. J. Heinz Company Global Stock Purchase Plan is incorporated herein by reference to Appendix A
to the Company's Proxy Statement dated August 3, 1999.
(xiii) Form of Severance Protection Agreement is incorporated herein by reference to Exhibit 10(a)(xiv)
to the Company's Annual Report on Form 10-K for the fiscal year ended May 3, 2000.
(xiv) H. J. Heinz Company 2000 Stock Option Plan is incorporated herein by reference to Appendix A to
the Company's Proxy Statement dated August 4, 2000.
(xv) H. J. Heinz Company Executive Estate Life Insurance Program.
(xvi) H. J. Heinz Company Restricted Stock Recognition Plan for Salaried Employees.
(xvii) Retirement Agreement for Mr. Williams.
(xviii) Retirement Agreement for Mr. Wamhoff.
12. Computation of Ratios of Earnings to Fixed Charges.
13. Pages 27 through 74 of the H. J. Heinz Company Annual Report to Shareholders for the fiscal year
ended May 1, 2002, portions of which are incorporated herein by reference. Those portions of the
Annual Report to Shareholders that are not incorporated herein by reference shall not be deemed to
be filed as a part of this Report.
21. Subsidiaries of the Registrant.
23. The following Exhibit is filed by incorporation by reference to Item 14(a)(2) of this Report:
(a) Consent of PricewaterhouseCoopers LLP.
24. Powers-of-attorney of the Company's directors.
99. Consolidated and combined financial statements of H. J. Heinz Finance Company and subsidiaries as of
May 1, 2002 and May 2, 2001 and for the three years in the period ended May 1, 2002.
Copies of the exhibits listed above will be furnished upon request to holders or beneficial holders of
any class of the Company's stock, subject to payment in advance of the cost of reproducing the exhibits
requested.
</Table>
(b) There have been no reports filed on Form 8-K during the last fiscal
quarter of the period covered by this Report.
13
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Report to be signed on
its behalf by the undersigned, thereunto duly authorized, on July 29, 2002.
H. J. HEINZ COMPANY
(Registrant)
By: /s/ ARTHUR WINKLEBLACK
.................................................
ARTHUR WINKLEBLACK
Executive Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below by the following persons on behalf of the
Registrant and in the capacities indicated, on July 29, 2002.
<Table>
<Caption>
Signature Capacity
--------- --------
<C> <S>
/s/ WILLIAM R. JOHNSON Chairman, President and
............................................ Chief Executive Officer
WILLIAM R. JOHNSON (Principal Executive Officer)
/s/ ARTHUR WINKLEBLACK Executive Vice President and
............................................ Chief Financial Officer
ARTHUR WINKLEBLACK (Principal Financial Officer)
/s/ BRUNA GAMBINO Corporate Controller
............................................ (Principal Accounting Officer)
BRUNA GAMBINO
</Table>
William R. Johnson Director
Nicholas F. Brady Director
Mary C. Choksi Director
Leonard S. Coleman, Jr. Director
Peter H. Coors Director
Edith E. Holiday Director
Samuel C. Johnson Director
Candace Kendle Director
Dean R. O'Hare Director
Thomas J. Usher Director
David R. Williams Director
James M. Zimmerman Director
By
/s/ ARTHUR WINKLEBLACK
........................................
ARTHUR WINKLEBLACK
Attorney-in-Fact
14
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
To the Shareholders of
H. J. Heinz Company:
Our audits of the consolidated financial statements referred to in our
report dated June 13, 2002, appearing in the 2002 Annual Report to Shareholders
of H. J. Heinz Company and Subsidiaries (which report and consolidated financial
statements are incorporated by reference in this Annual Report on Form 10-K)
also included an audit of the financial statement schedule listed in Item
14(a)(2) of this Form 10-K. In our opinion, this financial statement schedule
presents fairly, in all material respects, the information set forth therein
when read in conjunction with the related consolidated financial statements.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Pittsburgh, Pennsylvania
June 13, 2002
------------------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 (Nos. 2-51719, 33-32563, 33-42015, 33-55777, 33-62623,
333-13849, 333-87419 and 333-49728) of H. J. Heinz Company and Subsidiaries of
our report dated June 13, 2002 relating to the financial statements, which
appears in the 2002 Annual Report to Shareholders, which is incorporated in this
Annual Report on Form 10-K. We also consent to the incorporation by reference of
our report dated June 13, 2002 relating to the financial statement schedule,
which appears in this Form 10-K.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Pittsburgh, Pennsylvania
July 26, 2002
15
<PAGE>
SCHEDULE II
H. J. HEINZ COMPANY AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
FISCAL YEARS ENDED MAY 1, 2002, MAY 2, 2001 AND MAY 3, 2000
(THOUSANDS OF DOLLARS)
<Table>
<Caption>
Additions
----------------------
Balance at Charged to Charged Balance at
beginning costs and to other end of
Description of period expenses accounts Deductions period
- ----------- ---------- ---------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Fiscal year ended May 1, 2002:
Reserves deducted in the balance sheet from
the assets to which they apply:
Receivables............................... $ 15,075 $11,094 $-- $ 6,820(1) $ 19,349
======== ======= == ======= ========
Investments, advances and other assets.... $ 1,114 $ -- $-- $ 490 $ 624
======== ======= == ======= ========
Deferred tax assets (2)................... $ 60,298 $50,392 $-- $10,332 $100,358
======== ======= == ======= ========
Fiscal year ended May 2, 2001:
Reserves deducted in the balance sheet from
the assets to which they apply:
Receivables............................... $ 18,697 $ 9,162 $-- $12,784(1) $ 15,075
======== ======= == ======= ========
Investments, advances and other assets.... $ 1,597 $ -- $-- $ 483 $ 1,114
======== ======= == ======= ========
Deferred tax assets (3)................... $ 75,109 $ 8,121 $-- $22,932 $ 60,298
======== ======= == ======= ========
Fiscal year ended May 3, 2000:
Reserves deducted in the balance sheet from
the assets to which they apply:
Receivables............................... $ 21,633 $ 3,986 $-- $ 6,922(1) $ 18,697
======== ======= == ======= ========
Investments, advances and other assets.... $ 1,876 $ -- $-- $ 279 $ 1,597
======== ======= == ======= ========
Deferred tax assets (4)................... $ 40,811 $49,173 $-- $14,875 $ 75,109
======== ======= == ======= ========
</Table>
NOTES:
(1) Principally reserves on assets sold, written-off or reclassified.
(2) The net change in the valuation allowance for deferred tax assets was an
increase of $40.1 million. The increase was due to increases in the
valuation allowance related to additional deferred tax assets for foreign
tax credit carryforward ($36.8 million) and loss carryforwards ($13.6
million). The increase was partially offset by decreases in the valuation
allowance related to reduction in deferred tax assets for loss carryforwards
($10.3 million). See Note 5 to the Consolidated Financial Statements on
pages 62 and 63 of the Company's Annual Report to Shareholders for the
fiscal year ended May 1, 2002.
(3) The net change in the valuation allowance for deferred tax assets was a
decrease of $14.8 million. The decrease was due to reductions in the
valuation allowance related to deferred tax assets for foreign tax credit
carryforward ($11.0 million) and loss carryforwards ($11.9 million). The
decrease was partially offset by an increase in the valuation allowance
related to deferred tax assets for loss carryforwards ($8.1 million). See
Note 5 to the Consolidated Financial Statements on pages 56 and 57 of the
Company's Annual Report to Shareholders for the fiscal year ended May 2,
2001.
(4) The net change in the valuation allowance for deferred tax assets was an
increase of $34.3 million. The increase was due to increases in the
valuation allowance related to additional deferred tax assets for foreign
tax credit carryforward ($34.3 million) and loss carryforwards ($14.8
million). The increase was partially offset by decreases in the valuation
allowance related to reduction in deferred tax assets for loss carryforwards
($14.8 million). See Note 5 to the Consolidated Financial Statements on
pages 58 and 59 of the Company's Annual Report to Shareholders for the
fiscal year ended May 3, 2000.
<PAGE>
EXHIBIT INDEX
<Table>
<Caption>
DESCRIPTION OF EXHIBIT
------------------------------------------------------------
<S> <C>
Exhibits required to be filed by Item 601 of Regulation S-K
are listed below. Documents not designated as being
incorporated herein by reference are filed herewith. The
paragraph numbers correspond to the exhibit numbers
designated in Item 601 of Regulation S-K.
3(i) The Company's Articles of Amendment dated July 13,
1994, amending and restating the Company's amended and
restated Articles of Incorporation in their entirety,
are incorporated herein by reference to Exhibit 3(i)
to the Company's Annual Report on Form 10-K for the
fiscal year ended April 27, 1994.
3(ii) The Company's By-Laws, as amended effective
September 8, 1999, are incorporated herein by reference to
Exhibit 3 to the Company's Quarterly Report on Form
10-Q for the three months ended July 28, 1999.
4. Except as set forth below, there are no instruments
with respect to long-term debt of the Company that involve
indebtedness or securities authorized thereunder
exceeding 10 percent of the total assets of the
Company on a consolidated basis. The Company agrees
to file a copy of any instrument or agreement
defining the rights of holders of long-term debt of
the Company upon request of the Securities and
Exchange Commission.
(a) The Indenture between the Company and The First
National Bank of Chicago dated as of July 15, 1992 is
incorporated herein by reference to Exhibit 4(a) to
the Company's Registration Statement on Form S-3
(Reg. No. 333-48017) and the supplements to such
Indenture are incorporated herein by reference to the
Company's Form 8-Ks dated January 27, 1993, March 25,
1998 and July 16, 1998 relating to the Company's
$200,000,000 6 7/8% Notes due 2003, $300,000,000 6%
Notes due 2008 and $250,000,000 6.375% Debentures due
2028, respectively.
(i) The Supplement dated May 3, 2001 to the Indenture
between the Company and The First National Bank of Chicago
dated as of July 15, 1992 is incorporated herein
by reference to Exhibit 4(a)(i) of the Company's
Form 10-K for the fiscal year ended May 2, 2001.
(b) The Indenture between the Company and Bank One,
National Association dated November 6, 2000, is incorporated
herein by reference to Exhibit 4 to the Company's
Quarterly Report on Form 10-Q for the nine months
ended January 31, 2001.
(i) The Supplement dated May 3, 2001 to the Indenture
between the Company and Bank One, National Association dated
as of November 6, 2000 is incorporated herein by
reference to Exhibit 4(b)(i) of the Company's
Form 10-K for the fiscal year ended May 2, 2001.
(c) The Indenture among the Company, H.J. Heinz Finance
Company and Bank One, National Association dated as of July
6, 2001 relating to the H. J. Heinz Finance Company's
$750,000,000 6.625% Guaranteed Notes due 2011,
$700,000,000 6.00% Guaranteed Notes due 2012 and
$550,000,000 Guaranteed Notes due 2032.
</Table>
<PAGE>
<Table>
<Caption>
DESCRIPTION OF EXHIBIT
------------------------------------------------------------
<S> <C>
(d) The Certificate of Designations, Preferences and
Rights of Voting Cumulative Preferred Stock, Series A of H.
J. Heinz Finance Company is incorporated herein by
reference to Exhibit 4 of the Company's Quarterly
Report on Form 10-Q for the three months ended August
1, 2001.
10(a) Management contracts and compensatory plans:
(i) 1986 Deferred Compensation Program for H. J. Heinz
Company and affiliated companies, as amended and restated in
its entirety effective December 6, 1995, is
incorporated herein by reference to Exhibit 10(c)(i)
to the Company's Annual Report on Form 10-K for the
fiscal year ended May 1, 1995.
(ii) H. J. Heinz Company 1984 Stock Option Plan, as
amended, is incorporated herein by reference to Exhibit
10(n) to the Company's Annual Report on Form 10-K
for the fiscal year ended May 2, 1990.
(iii) H. J. Heinz Company 1987 Stock Option Plan, as
amended, is incorporated herein by reference to Exhibit
10(o) to the Company's Annual Report on Form 10-K
for the fiscal year ended May 2, 1990.
(iv) H. J. Heinz Company 1990 Stock Option Plan is
incorporated herein by reference to Appendix A to the
Company's Proxy Statement dated August 3, 1990.
(v) H. J. Heinz Company 1994 Stock Option Plan is
incorporated herein by reference to Appendix A to the
Company's Proxy Statement dated August 5, 1994.
(vi) H. J. Heinz Company Supplemental Executive Retirement
Plan, as amended, is incorporated herein by reference to
Exhibit 10(c)(ix) to the Company's Annual Report on
Form 10-K for the fiscal year ended April 28, 1993.
(vii) H. J. Heinz Company Executive Deferred Compensation
Plan (as amended and restated on December 27, 2001).
(viii) H. J. Heinz Company Incentive Compensation Plan is
incorporated herein by reference to Appendix B to the
Company's Proxy Statement dated August 5, 1994.
(ix) H. J. Heinz Company Stock Compensation Plan for
Non-Employee Directors is incorporated herein by reference
to Appendix A to the Company's Proxy Statement dated
August 3, 1995.
(x) H. J. Heinz Company 1996 Stock Option Plan is
incorporated herein by reference to Appendix A to the
Company's Proxy Statement dated August 2, 1996.
(xi) H. J. Heinz Company Deferred Compensation Plan for
Directors is incorporated herein by reference to Exhibit
10(a)(xiii) to the Company's Annual Report on Form
10-K for the fiscal year ended April 29, 1998.
(xii) H. J. Heinz Company Global Stock Purchase Plan is
incorporated herein by reference to Appendix A to the
Company's Proxy Statement dated August 3, 1999.
(xiii) Form of Severance Protection Agreement is
incorporated herein by reference to Exhibit 10(a)(xiv) for
the fiscal year ended May 3, 2000.
</Table>
<PAGE>
<Table>
<Caption>
DESCRIPTION OF EXHIBIT
------------------------------------------------------------
<S> <C>
(xiv) H. J. Heinz Company 2000 Stock Option Plan is
incorporated herein by reference to Appendix A to the
Company's Proxy Statement dated August 4, 2000.
(xv) H. J. Heinz Company Executive Estate Life Insurance
Program.
(xvi) H. J. Heinz Company Restricted Stock Recognition Plan
for Salaried Employees.
(xvii) Retirement Agreement for Mr. Williams.
(xviii) Retirement Agreement for Mr. Wamhoff.
12. Computation of Ratios of Earnings to Fixed Charges.
13. Pages 27 through 74 of the H. J. Heinz Company Annual
Report to Shareholders for the fiscal year ended May 1,
2002, portions of which are incorporated herein by
reference. Those portions of the Annual Report to
Shareholders that are not incorporated herein by
reference shall not be deemed to be filed as a part of
this Report.
21. Subsidiaries of the Registrant.
23. The following Exhibit is filed by incorporation by
reference to Item 14(a)(2) of this Report:
(a) Consent of PricewaterhouseCoopers LLP.
24. Powers-of-attorney of the Company's directors.
99. Consolidated and combined financial statements of H. J.
Heinz Finance Company and subsidiaries as of May 1, 2002 and
May 2, 2001 and for the three years in the period ended
May 1, 2002.
</Table>
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.C
<SEQUENCE>3
<FILENAME>j9491701exv4wc.txt
<DESCRIPTION>INDENTURE
<TEXT>
<PAGE>
Exhibit 4(c)
CONFORMED COPY
H.J. HEINZ FINANCE COMPANY,
As Issuer
AND
H.J. HEINZ COMPANY,
As Guarantor
TO
BANK ONE, NATIONAL ASSOCIATION,
As Trustee
--------------
INDENTURE
Dated as of July 6, 2001
--------------
<PAGE>
CONFORMED COPY
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
PARTIES.................................................................................... 1
RECITALS OF THE COMPANY.................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:............................................................ 1
Act..................................................................... 2
Affiliate............................................................... 2
Agent Member............................................................ 2
Applicable Procedures................................................... 2
Authenticating Agent.................................................... 2
Board of Directors...................................................... 2
Board Resolution........................................................ 2
Business Day............................................................ 2
Capital Stock............................................................ 2
Clearstream.............................................................. 2
Commission.............................................................. 2
Company................................................................. 3
Company Request; Company Order.......................................... 3
Comparable Treasury Issue............................................... 3
Comparable Treasury Price............................................... 3
Consolidated Net Assets................................................. 3
Corporate Trust Office.................................................. 3
Corporation............................................................. 3
Covenant Defeasance..................................................... 3
Defaulted Interest...................................................... 3
Depositary.............................................................. 3
DTC..................................................................... 3
Euroclear............................................................... 3
Event of Default........................................................ 3
Exchange Act............................................................ 3
Exchange Offer.......................................................... 3
Exchange Registration Statement......................................... 4
Exchange Security....................................................... 4
Expiration Date......................................................... 4
Global Security......................................................... 4
Guarantee............................................................... 4
guarantee............................................................... 4
Guarantor............................................................... 4
Holder.................................................................. 4
Indenture............................................................... 4
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
Interest Payment Date................................................... 4
Investment Company Act.................................................. 4
Maturity................................................................ 5
Notice of Default....................................................... 5
Officer's Certificate................................................... 5
Opinion of Counsel...................................................... 5
Original Security....................................................... 5
Outstanding............................................................. 5
Paying Agent............................................................ 6
Person.................................................................. 6
Place of Payment........................................................ 6
Predecessor Security.................................................... 6
Principal Property...................................................... 6
Purchasers.............................................................. 6
QIB..................................................................... 6
Redemption Date......................................................... 7
Redemption Price........................................................ 7
Reference Treasury Dealer............................................... 7
Reference Treasury Dealer Quotation..................................... 7
Registered Securities................................................... 7
Registration Default.................................................... 7
Registration Rights Agreement........................................... 7
Regular Record Date..................................................... 7
Regulation S............................................................ 7
Regulation S Certificate................................................ 7
Regulation S Global Security............................................ 7
Regulation S Legend..................................................... 7
Regulation S Securities................................................. 7
Remaining Scheduled Payments............................................ 7
Resale Registration Statement........................................... 7
Restricted Global Security.............................................. 7
Restricted Period....................................................... 7
Restricted Securities................................................... 8
Restricted Securities Certificate....................................... 8
Restricted Securities Legend............................................ 8
Restricted Subsidiary................................................... 8
Rule 144A............................................................... 8
Rule 144A Securities.................................................... 8
Securities.............................................................. 8
Securities Act.......................................................... 8
Securities Act Legend................................................... 8
Security Register and Security Registrar................................ 8
Special Interest........................................................ 8
Special Record Date..................................................... 8
Stated Maturity......................................................... 8
Subsidiary.............................................................. 8
Treasury Rate........................................................... 9
Trust Indenture Act..................................................... 9
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
Trustee................................................................. 9
Unrestricted Global Security............................................ 9
Unrestricted Securities................................................. 9
Vice President.......................................................... 9
Voting Stock............................................................ 9
SECTION 102. Compliance Certificates and Opinions.................................... 9
SECTION 103. Form of Documents Delivered to Trustee.................................. 10
SECTION 104. Acts of Holders; Record Dates........................................... 10
SECTION 105. Notices, Etc., to Trustee, Company and Guarantor........................ 12
SECTION 106. Notice to Holders; Waiver............................................... 12
SECTION 107. Conflict with Trust Indenture Act....................................... 13
SECTION 108. Effect of Headings and Table of Contents................................ 13
SECTION 109. Successors and Assigns.................................................. 13
SECTION 110. Separability Clause..................................................... 13
SECTION 111. Benefits of Indenture................................................... 13
SECTION 112. Governing Law........................................................... 13
SECTION 113. Legal Holidays.......................................................... 13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally......................................................... 14
SECTION 202. Form of Face of Security................................................ 15
SECTION 203. Form of Reverse of Security............................................. 20
SECTION 204. Form of Legend for Securities........................................... 25
SECTION 205. Form of Trustee's Certificate of Authentication......................... 26
SECTION 206. Form of Guarantee....................................................... 26
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.................................... 29
SECTION 302. Denominations........................................................... 31
SECTION 303. Execution, Authentication, Delivery and Dating.......................... 31
SECTION 304. Temporary Securities.................................................... 33
SECTION 305. Registration, Registration of Transfer and Exchange;
Certain Transfers and Exchanges................................. 33
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities........................ 37
SECTION 307. Payment of Interest; Interest Rights Preserved.......................... 38
SECTION 308. Persons Deemed Owners................................................... 39
SECTION 309. Cancellation............................................................ 39
SECTION 310. Computation of Interest................................................. 39
ARTICLE FOUR
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SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture................................. 39
SECTION 402. Application of Trust Money.............................................. 40
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default....................................................... 41
SECTION 502. Acceleration of Maturity; Rescission and Annulment...................... 42
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee........................................... 43
SECTION 504. Trustee May File Proofs of Claim........................................ 43
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities.................................................... 44
SECTION 506. Application of Money Collected.......................................... 44
SECTION 507. Limitation on Suits..................................................... 44
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................................. 45
SECTION 509. Restoration of Rights and Remedies...................................... 45
SECTION 510. Rights and Remedies Cumulative.......................................... 45
SECTION 511. Delay or Omission Not Waiver............................................ 46
SECTION 512. Control by Holders...................................................... 46
SECTION 513. Waiver of Past Defaults................................................. 46
SECTION 514. Undertaking for Costs................................................... 46
SECTION 515. Waiver of Usury, Stay or Extension Laws................................. 47
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities..................................... 48
SECTION 602. Notice of Defaults...................................................... 48
SECTION 603. Certain Rights of Trustee............................................... 48
SECTION 604. Not Responsible for Recitals or Issuance of Securities.................. 49
SECTION 605. May Hold Securities..................................................... 49
SECTION 606. Money Held in Trust..................................................... 49
SECTION 607. Compensation and Reimbursement.......................................... 50
SECTION 608. Conflicting Interests................................................... 50
SECTION 609. Corporate Trustee Required; Eligibility................................. 50
SECTION 610. Resignation and Removal; Appointment of Successor....................... 51
SECTION 611. Acceptance of Appointment by Successor.................................. 52
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business...................................................... 53
SECTION 613. Preferential Collection of Claims Against Company....................... 53
SECTION 614. Appointment of Authenticating Agent..................................... 53
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders....................................................... 55
SECTION 702. Preservation of Information; Communications
to Holders....................................................... 55
SECTION 703. Reports by Trustee...................................................... 56
SECTION 704. Reports by Company and Guarantor........................................ 56
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company or Guarantor May Consolidate, Etc., Only on
Certain Terms.................................................... 56
SECTION 802. Successor Substituted................................................... 57
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders...................... 57
SECTION 902. Supplemental Indentures with Consent of Holders......................... 58
SECTION 903. Execution of Supplemental Indentures.................................... 59
SECTION 904. Effect of Supplemental Indentures....................................... 59
SECTION 905. Reference in Securities to Supplemental Indentures...................... 60
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.............................. 60
SECTION 1002. Maintenance of Office or Agency......................................... 60
SECTION 1003. Money for Securities Payments to Be Held in Trust....................... 60
SECTION 1004. Restrictions on Secured Debt............................................ 61
SECTION 1005. Statement by Officer as to Default...................................... 63
SECTION 1006. Existence............................................................... 63
SECTION 1007. Maintenance of Properties............................................... 63
SECTION 1008. Payment of Taxes and Other Claims....................................... 64
SECTION 1009. Waiver of Certain Covenants............................................. 64
SECTION 1010. Registration Rights..................................................... 64
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article................................................ 64
SECTION 1102. Election to Redeem; Notice to Trustee................................... 64
SECTION 1103. Selection by Trustee of Securities to Be Redeemed....................... 65
SECTION 1104. Notice of Redemption.................................................... 65
SECTION 1105. Deposit of Redemption Price............................................. 66
SECTION 1106. Securities Payable on Redemption Date................................... 66
SECTION 1107. Securities Redeemed in Part............................................. 67
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article................................................ 67
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities................... 67
SECTION 1203. Redemption of Securities for Sinking Fund............................... 67
ARTICLE THIRTEEN
GUARANTEE OF THE SECURITIES
SECTION 1301. Guarantee............................................................... 68
SECTION 1302. Execution and Delivery of Guarantee..................................... 69
SECTION 1303. Obligations of the Guarantor Unconditional.............................. 69
SECTION 1304. Waivers................................................................. 71
SECTION 1305. Waiver of Subrogation and Contribution.................................. 72
SECTION 1306. Certain Agreements...................................................... 72
SECTION 1307. No Waiver; Cumulative Remedies.......................................... 73
SECTION 1308. Continuing Guarantee.................................................... 73
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant Defeasance............ 74
SECTION 1402. Defeasance and Discharge................................................ 74
SECTION 1403. Covenant Defeasance..................................................... 74
SECTION 1404. Conditions to Defeasance or Covenant Defeasance......................... 75
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SECTION 1405. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions................................................. 76
SECTION 1406. Reinstatement............................................................ 77
TESTIMONIUM................................................................................ 78
SIGNATURES AND SEALS....................................................................... 79
ACKNOWLEDGEMENTS........................................................................... 79
Annex A - Form of Regulation S Certificate .............................................. A-1
Annex B - Form of Restricted Securities Certificate...................................... B-1
Annex C - Form of Unrestricted Securities Certificate ................................... C-1
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INDENTURE, dated as of July 6, 2001 among H.J. Heinz Finance Company, a
corporation duly organized under the laws of the State of Delaware (herein
called the "Company"), H. J. Heinz Company, a corporation duly organized and
existing under the laws of the Commonwealth of Pennsylvania (herein called the
"Guarantor"), and Bank One, National Association, a national banking association
duly organized and existing under the laws of the United States, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
The Guarantor desires to guarantee irrevocably and unconditionally the
payment of the principal of, premium, if any, and any interest on, and any other
amount due under, this Indenture and the Securities, as the same shall become
due in accordance with the terms of this Indenture and the Securities pursuant
to the Guarantee provided in this Indenture and endorsed on the Securities, and
to provide therefore has duly authorized the execution and delivery of the
Guarantee and this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
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(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of Euroclear, Clearstream and the Depositary for such
Security, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the Company
or the Guarantor or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company or the Guarantor to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Clearstream" means Clearstream Banking, societe anonyme, Luxembourg
(or any successor securities clearing agency).
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
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"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, a Vice Chairman
of the Board, its President, a Vice President, its Treasurer, its Secretary, an
Assistant Secretary, or an Assistant Treasurer and delivered to the Trustee.
"Comparable Treasury Issue" has the meaning set forth in the form of
Security contained in Section 203.
"Comparable Treasury Price" has the meaning set forth in the form of
Security contained in Section 203.
"Consolidated Net Assets" means total assets after deducting therefrom
all current liabilities as set forth on the most recent balance sheet of the
Guarantor and its consolidated Subsidiaries and computed in accordance with
generally accepted accounting principles.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at 1 Bank One Plaza,
Suite IL1-0126, Chicago, Illinois 60670-0126, Attention: Global Corporate Trust
Services, except for purposes of Section 1002, if required with respect to a
series of Securities, such term shall mean the office or agency of the Trustee
in the Borough of Manhattan, the City of New York, which office at the date
hereof is located at 14 Wall Street, Eighth Floor, New York, New York 10005.
"Corporation" means a corporation, association, company, LLC,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1403.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1202.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as Depositary
for such Securities as contemplated by Section 301.
"DTC" means The Depository Trust Company.
"Euroclear" means the Euroclear System (or any successor securities
clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
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"Exchange Offer" has the meaning set forth in the form of Security
contained in Section 202.
"Exchange Registration Statement" has the meaning set forth in the form
of Security contained in Section 202.
"Exchange Security " means any Security issued in exchange for an
Original Security or Original Securities pursuant to the Exchange Offer or
otherwise registered under the Securities Act and any Security with respect to
which the next preceding Predecessor Security of such Security was an Exchange
Security.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Guarantee" means the irrevocable and unconditional guarantee of the
Securities by the Guarantor, as contained in Article Thirteen of this Indenture
and endorsed on the Securities.
"guarantee" by any Person means the obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep well, to purchase assets, goods,
securities or services, to take or pay or to maintain financial statement
conditions or otherwise or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Debt or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or in
part); provided that the term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "guarantee"
used as a verb has a corresponding meaning.
"Guarantor" means H.J. Heinz Company, and its respective Successors, if
any, who becomes a Successor pursuant to Section 801.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
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"Investment Company Act" means the Investment Company Act of 1940 and
any statute successor thereto, in each case as amended from time to time.
"Maturity" when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, tender for purchase by the
Company, or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4).
"Officer's Certificate" of the Company means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the President, a Vice
President, the Treasurer, the Secretary or an Assistant Secretary, or an
Assistant Treasurer of the Company, and delivered to the Trustee.
"Officer's Certificate" of the Guarantor means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the President, a Vice
President, the Treasurer, the Secretary or an Assistant Secretary, or an
Assistant Treasurer of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Security" means any Security, other than an Exchange
Security, that is entitled to the benefits of a Registration Rights Agreement.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company or the Guarantor) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(3) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
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acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, Corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" when used with respect to the Securities of any
series, means the place or places where the principal of or Redemption Price,
and any premium and interest on the Securities of that series are payable as
specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any manufacturing or processing plant or
warehouse owned at the date hereof or hereafter acquired by the Guarantor or any
Restricted Subsidiary of the Guarantor which is located within the United States
and the gross book value (including related land and improvements thereon and
all machinery and equipment included therein without deduction of any
depreciation reserves) of which on the date as of which the determination is
being made exceeds 2% of Consolidated Net Assets, other than (i) any such
manufacturing or processing plant or warehouse or any portion thereof (together
with the land on which it is erected and fixtures comprising a part thereof)
which is financed by industrial development bonds which are tax exempt pursuant
to Section 103 of the Internal Revenue Code (or which receive similar tax
treatment under any subsequent amendments thereto or any successor laws thereof
or under any other similar statute of the United States), (ii) any property
which in the opinion of the Board of Directors is not of material importance to
the total business conducted by the Guarantor as an entirety or (iii) any
portion of a particular property which is similarly found not to be of material
importance to the use or operation of such property.
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"Purchasers" means the initial purchasers from the Company of
Securities being sold pursuant to Rule 144A.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Redemption Date" when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Treasury Dealer" has the meaning set forth in the form of
Security contained in Section 203.
"Reference Treasury Dealer Quotation" has the meaning set forth in the
form of Security contained in Section 203.
"Registered Securities" means the Exchange Securities and all other
Securities sold or otherwise disposed of pursuant to an effective registration
statement under the Securities Act, together with their respective Successor
Securities.
"Registration Default" has the meaning set forth in the form of
Security contained in Section 202.
"Registration Rights Agreement" has the meaning specified in the form
of security in Section 202.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Regulation S Certificate" means a certificate substantially in the
form set forth in Annex A.
"Regulation S Global Security" has the meaning specified in Section
201.
"Regulation S Legend" means a legend substantially in the form of the
legend required in the form of Security set forth in accordance with Section 202
to be placed upon each Regulation S Security".
"Regulation S Securities" means all Securities required pursuant to
Section 305(c) to bear a Regulation S Legend. Such term includes the Regulation
S Global Security.
"Remaining Scheduled Payments" has the meaning set forth in the form of
Security contained in Section 203.
"Resale Registration Statement" has the meaning set forth in the form
of Security contained in Section 202.
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"Restricted Global Security" has the meaning specified in Section 201.
"Restricted Period" means the period of 40 consecutive days beginning
on and including the later of (i) the day on which Securities are first offered
to persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) the original issuance date of the Securities.
"Restricted Securities" means all Securities required pursuant to
Section 305(c) to bear any Restricted Securities Legend. Such term includes the
Restricted Global Security.
"Restricted Securities Certificate" means a certificate substantially
in the form set forth in Annex B.
"Restricted Securities Legend" means, collectively, the legends
substantially in the forms of the legends required in the form of Security set
forth in accordance with Section 202 to be placed upon each Restricted Security.
"Restricted Subsidiary" means a Subsidiary of the Guarantor (i)
substantially all the property of which is located, or substantially all the
business of which is carried on, within the United States and (ii) which owns a
Principal Property.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A Securities" means the Securities purchased by the Purchasers
from the Company pursuant to Rule 144A.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Securities Act Legend" means a Restricted Securities Legend or a
Regulation S Legend.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Interest" has the meaning set forth in the form of Security
contained in Section 202.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
any installment of principal or interest is due and payable.
"Subsidiary" means any Corporation or limited partnership more than 50%
of the outstanding voting stock or partnership interest of which is owned,
directly or indirectly, by the
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Guarantor or by one or more other Subsidiaries, or by the Guarantor and one or
more other Subsidiaries. For the purposes of this definition, "voting stock"
means stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"Treasury Rate" has the meaning set forth in the form of Security
contained in Section 203.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Unrestricted Global Security" has the meaning specified in Section
201.
"Unrestricted Securities" has the meaning specified in Section 201.
"Vice President", when used with respect to the Company, the Guarantor
or the Trustee, means any vice president, whether or not designated by a number
or a word or words added before or after the title "vice president".
"Voting Stock" means Capital Stock of a Corporation of the class or
classes having general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such
Corporation (irrespective of whether or not at the time stock of any other class
or classes shall have or might have power upon the occurrence of any
contingency).
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company or
the Guarantor shall furnish to the Trustee such certificates and opinions as may
be required under the Trust Indenture Act. Each such certificate or opinion
shall be given in the form of an Officer's Certificate, if to be given by an
officer of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for certificates
provided for in Section 1005) shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or
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other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record
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date previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be construed to
render ineffective any action taken by Holders of the requisite principal amount
of Outstanding Securities of the relevant series on the date such action is
taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Company in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the
Company party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the Trustee and the other
party hereto in writing, and to each Holder of Securities of the relevant series
in the manner set forth in Section 106, on or prior to the existing Expiration
Date. If an Expiration Date is not designated with respect to any record date
set pursuant to this Section, the Company party hereto which set such record
date shall be deemed to have initially designated the 180th day after such
record date as the Expiration Date with respect thereto, subject to its right to
change the Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee, Company and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the Guarantor shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Global Corporate Trust Services, or
(2) the Company or the Guarantor by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company or the Guarantor addressed to it at the address
previously furnished in writing to the Trustee by the Company or the
Guarantor, as the case may be.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular
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<PAGE>
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or the
Guarantor shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities or the
Guarantee shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 111. Benefits of Indenture.
Except to the extent otherwise expressly provided in the form of
Security or Form of Guarantee for any series, nothing in this Indenture, in the
Guarantee or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law.
This Indenture, the Guarantee and the Securities shall be governed by
and construed in accordance with the law of the State of New York.
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<PAGE>
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution, Officer's Certificate delivered pursuant to
Section 303 or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution thereof. If
the form of Securities of any series is established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities.
Definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Upon their original issuance, Rule 144A Securities shall be issued in
the form of one or more Global Securities registered in the name of DTC, as
Depositary, or its nominee and deposited with the Security Registrar, as
custodian for DTC, for credit by DTC to the respective accounts of beneficial
owners of the Securities represented thereby (or such other accounts as they may
direct). Such Global Securities, together with their Successor Securities that
are Global Securities other than a Regulation S Global Security, are
collectively herein called the "Restricted Global Security".
Upon their original issuance, Regulation S Securities shall be issued
in the form of one or more Global Securities registered in the name of DTC, as
Depositary, or its nominee and deposited with the Security Registrar, as
custodian for DTC, for credit by DTC to the respective accounts of beneficial
owners of the Securities represented thereby (or such other accounts as they may
direct), provided that upon such deposit all such Securities shall be credited
to or through accounts maintained at DTC by or on behalf of Euroclear or
Clearstream. Such Global Securities, together with their Successor Securities
that are Global Securities other than a Restricted Global Security, are
collectively herein called a "Regulation S Global Security". After
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such time as the Restricted Period shall have terminated, such Global Securities
shall be referred to herein collectively as the "Unrestricted Global
Securities". The aggregate principal amount of the Regulation S Global Security
or the Unrestricted Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the U.S. Depositary, in connection with a corresponding decrease or increase in
the aggregate principal amount of the Restricted Global Security, as hereinafter
provided. As used herein, the term "Restricted Period" means the period of 40
consecutive days beginning on and including the first day after the later of (i)
the day that the Initial Purchasers advise the Company and the Trustee is the
day on which the Securities are first offered to persons other than distributors
(as defined in Regulation S) in reliance on Regulation S and (ii) the Closing
Date. The Regulation S Global Security, the Unrestricted Global Security and all
other Securities that are not Restricted Securities shall collectively be
referred to herein as the "Unrestricted Securities." The Company, the Guarantor,
the Trustee and either of their Agents shall not be responsible for any acts or
omissions of a Depository, for any depository records of beneficial ownership
interests or for any transactions between the Depository and beneficial owners.
SECTION 202. Form of Face of Security.
[Insert any legend required by Section 204.]
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<PAGE>
H. J. Heinz FINANCE Company
o % Guaranteed Note due o
Unconditionally and irrevocably guaranteed by
H. J. Heinz Company
No. __
CUSIP: o
H. J. Heinz Finance Company, a Delaware corporation (the "Company"),
which term includes any successor corporation under the Indenture hereinafter
referred to, for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of dollars ($ ) on
___________________________ at the office or agency of the Company maintained
for this purpose in the City of Chicago, Illinois, which shall initially be the
corporate trust office of Bank One, National Association, the Trustee under the
Indenture hereinafter referred to, in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay to the registered holder hereof, as
hereinafter provided, interest thereon, in like coin or currency, on
______________ and ______________ of each year, or, if such date is not a
Business Day (as defined below), on the next Business Day, commencing
______________ , 20___ at the rate per annum specified below. Interest shall be
paid to the persons in whose name this Security is registered on ______________
and ______________ (whether or not a Business Day) immediately preceding such
______________ and ______________ (the "Record Date"). "Business Day" means any
day other than a Saturday, a Sunday or a day on which banking institutions in
The City of New York are authorized or obligated by law, executive order or
governmental decree to be closed.
This Security will bear interest at an annual rate of o% per annum in
arrears from the date hereof on said principal amount on each ______________ and
______________, beginning ______________ , 20___, until payment of said
principal amount has been made or duly provided for; [if Original Security,
insert -- PROVIDED, HOWEVER, that if (i) a registration statement (the "Exchange
Registration Statement") under the Securities Act of 1933, as amended (the
("Securities Act"), registering a security substantially identical to this
Security pursuant to an exchange offer (the "Exchange Offer") has not been filed
with the Securities and Exchange Commission (the "Commission") within ___ days
after the Securities have been initially issued as required by the Exchange and
Registration Rights Agreement, dated as of ______________ , 20___ by and between
the Company, the Guarantor and the Holders from time to time of the Securities
(the "Registration Rights Agreement") or, if applicable, a registration
statement registering this security resale (the "Shelf Registration Statement")
has not been filed as required by the Exchange and Registration Rights Agreement
or (ii) such Exchange Registration Statement has not become effective or been
declared effective by the Commission within 330 days after the Securities have
been initially issued or such Shelf Registration Statement has not become
effective on or before the date on which such registration statement is required
to become or be declared effective or (iii) the Exchange Offer has not been
completed within 45 days after the initial effective date of the Exchange
Registration Statement relating to the Exchange Offer (if the
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Exchange Offer is then required to be made) or (iv) any Exchange Registration
Statement or Shelf Registration Statement required to be filed is filed and
declared effective but shall thereafter either be withdrawn by the Company or
shall become subject to an effective stop order issued pursuant to Section 8(d)
of the Securities Act suspending the effectiveness of such registration
statement without being succeeded immediately by an additional registration
statement filed and declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default" and each period during which a
Registration Default has occurred and is continuing, a "Registration Default
Period"), then special interest ("Special Interest"), in addition to the stated
interest on the Securities, shall accrue at a per annum rate of 0.25% for the
first 90 days of the Registration Default Period, and at a per annum rate of
0.50% thereafter for the remaining portion of the Default Period. At no time
will the aggregate of any such Special Interest described above accrue at an
annual rate in excess of 0.50% and Special Interest shall accrue and be payable
until such time as no Registration Default is in effect (after which such
Special Interest will cease to accrue). Accrued Special Interest, if any, shall
be paid semi-annually on each Interest Payment Date and the amount of accrued
Special Interest shall be determined on the basis of the number of days actually
elapsed.] Any accrued and unpaid interest [if Original Security, insert --
(including Special Interest)] on this Security upon the issuance of an Exchange
Security (as defined in the Indenture) in exchange for this Security shall cease
to be payable to the Holder hereof but such accrued and unpaid interest [if
Original Security, insert -- (including Special Interest)] shall be payable on
the next Interest Payment Date for such Exchange Security to the Holder thereof
on the related Regular Record Date. Interest on this Security [if Original
Security, insert --, with the exception of Special Interest,] shall be computed
on the basis of a 360-day year of twelve 30-day months. [if Original Security,
insert Following the date on which all Registration Defaults are cured, the
accrual of Special Interest will cease.]
Notwithstanding anything to the contrary herein, neither the Company
nor the Guarantor shall be required to pay Special Interest to a Holder of
Transfer Restricted Securities if such Holder failed to comply with its
obligations to make certain of the representations set forth in, or failed to
provide certain of the information required to be provided by it pursuant to the
Registration Rights Agreement. As used herein, the term "Transfer Restricted
Securities" means (i) each Security until the date on which such Security has
been exchanged for a freely transferable Exchange Security in the Exchange
Offer, (ii) each Security until the date on which it has been effectively
registered under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iii) each Security until the date on which it is
distributed to the public pursuant to Rule 144 under the Securities Act or is
saleable pursuant to Rule 144(k) under the Securities Act].
[If the Security is not to bear interest prior to Maturity, insert -
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of __% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. [Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of __% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue interest
shall be payable on demand.]
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This Security has initially been issued in the form of a Global
Security (as defined on the reverse hereof), and the Company has initially
designated The Depository Trust Company ("DTC," which term shall include any
successor) as the Depositary for this Security. For as long as this Security or
any portion hereof is issued in such form, and notwithstanding the foregoing,
all payments of interest, principal and other amounts in respect of this
Security or such portion (including payments upon repurchase or redemption
referred to on the reverse hereof) shall be made to the Depositary or its
nominee in accordance with its applicable procedures, in the coin or currency
specified above and as further provided on the reverse hereof.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Security shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been executed by the
Trustee under the Indenture referred to on the reverse hereof.
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IN WITNESS WHEREOF, the Company has caused this Security to be signed by its
duly authorized officer and has caused its corporate seal to be affixed
hereunto.
H.J. HEINZ FINANCE COMPANY
By:
------------------------------------
Title:
Attest:
- ----------------------
Secretary
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SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of July 6, 2001 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), by and among the Company, the Guarantor and Bank One, National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Guarantor, the Trustee and
the Holders of the Securities and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert -- , limited in aggregate
principal amount to $______________].
As provided in Article Thirteen of the Indenture, the Guarantor has,
for the benefit of the Holders, irrevocably and unconditionally guaranteed the
due and punctual payment of all amounts payable by the Company under the
Indenture and the Securities as and when the same shall become due and payable.
Reference is hereby made to Article [Thirteen] of the Indenture for a statement
of the respective rights, limitations of rights, duties and amounts thereunder
of the Guarantor and the Trustee.
[If Original Securities, insert -- This Security is entitled
to the benefits of a Registration Rights Agreement as provided for on the face
of this Security and in Section 1010 of the Indenture. The Company may register
a security substantially identical to this Security (except that such Security
will not contain terms with respect to the payment of Special Interest (as
described on the face of this Security) or Transfer Restrictions) pursuant to an
Exchange Offer, or in lieu thereof, a Resale Registration Statement.]
Reference is hereby made to the Indenture for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Guarantor, the Trustee and the Holders of the Securities and
of the terms upon which the Securities are, and are to be, authenticated and
delivered.
[if applicable, insert -- The Securities are subject to
redemption, as a whole or from time to time in part, upon not less than 30 nor
more than 60 days' notice mailed to each Holder of Securities to be redeemed at
its address as it appears in the Securities Register, on any date prior to their
Stated Maturity at a Redemption price equal to the greater of (i) 100% of the
principal amount of such Securities plus accrued interest to the date of
redemption or (ii) the sum of the present values of the Remaining Scheduled
Payments of principal and interest thereon (not including any portion of such
payments of interest accrued as of the Redemption Date) discounted to the
Redemption Date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below) plus [____] basis
points, plus accrued interest thereon to the redemption date; provided, however,
that unless the Company defaults in payment of the Redemption Price, on or after
the Redemption Date, interest will cease to accrue on the Securities or portions
thereof called for redemption.
"Treasury Rate" means the rate per annum equal to the
semiannual equivalent yield to maturity (computed as of the second business day
immediately preceding the redemption date) of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue
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<PAGE>
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for the redemption date.
"Comparable Treasury Issue" means the U.S. treasury security
selected by an Independent investment banker that would be used, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Notes. "Independent investment banker" means one of the Reference
Treasury Dealers that the Company appoints.
"Comparable Treasury Price" means (i) the average of the bid
and asked prices for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) as of the third business day preceding the
redemption date, as set forth in the daily statistical release (or any successor
release) published by the Federal Reserve Bank of New York and designated
"Composite 3:30 p.m. Quotations for U.S. Government Securities" or (ii) if the
release (or any successor release) is not published or does not contain such
prices on that business day, (1) the average of the Reference Treasury Dealer
Quotations for the redemption date, after excluding the highest and lowest of
such Reference Treasury Dealer Quotations or (2) if the Trustee obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all
quotations obtained.
"Reference Treasury Dealer" means each of [__________________]
(and its successors) and three other nationally recognized investment banking
firms that are primary U.S. Government securities dealers specified from time to
time by the Company. If, however, any of them ceases to be a primary U.S.
Government securities dealer, the Company will substitute another nationally
recognized investment banking firm that is such a dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount
and in each case for settlement on the next business day) quoted in writing to
the Trustee by such Reference Treasury Dealer as of 3:30 p.m., New York time, on
the third business day preceding the redemption date.
"Remaining Scheduled Payments" means the remaining scheduled
payments of the principal and interest (excluding any interest accrued and paid
as of the date of redemption) on each Note to be redeemed that would be due
after the related redemption date but for such redemption.]
[If applicable, insert - The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1) on
........... in any year commencing with the year .... and ending with the year
..... through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [if applicable, insert - on or after .......], as a whole or in part,
at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning ...........of the years indicated,
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Redemption Price For Redemption Price For
Redemption Through Redemption Otherwise Than
Operation of the Through Operation of the
Year Sinking Fund Sinking Fund
-------- -------------------- -------------------------
and thereafter at a Redemption Price equal to ....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the
Company may not, prior to ......., redeem any Securities of this series as
contemplated by [if applicable, insert - Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than.....% per annum.]
[If applicable, insert - The sinking fund for this series
provides for the redemption on ......... in each year beginning with the year
...... and ending with the year .... of [if applicable, insert - not less than
$...... ("mandatory sinking fund") and not more than] $...... aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if applicable,
insert - mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert - mandatory] sinking fund payments otherwise required to be
made [if applicable, insert -, in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert
- - If the Company is redeeming less than all the Securities, the Trustee will
select the particular Notes to be redeemed by lot or by another method the
Trustee deems fair and appropriate. In the event of redemption of this Security
in part only, a new Security or Securities for the unredeemed portion hereof
will be issued in the name of the holder hereof upon the cancellation hereof.]
Except as described above, the Securities will not be
redeemable by the Company prior to maturity and will not be entitled to the
benefit of any sinking fund.
[If applicable, insert paragraph regarding subordination of
the Security.]
[If applicable, insert - The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
In the event of a deposit or withdrawal of an interest in this
Security (including upon an exchange, transfer, redemption or repurchase of this
Security in part only) effected in
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accordance with the Applicable Procedures, the Security Registrar, upon receipt
of notice of such event from the Depositary's custodian for the Security, shall
make an adjustment on its records to reflect an increase or decrease of the
Outstanding principal amount of this Security resulting from such deposit or
withdrawal, as the case may be.
Unless the context otherwise requires, the Original securities
(as defined in the Indenture) and the Exchange Securities (as defined in the
Indenture) shall constitute one series for all purposes under the Indenture,
including without limitation, amendments, waivers and redemptions.
[If the Security is not an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security,
insert-- If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to -- insert formula for determining
the amount. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal, premium and interest (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of a
majority in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such
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notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest and other amounts due on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Guarantor, the Trustee nor any such agent
shall be affected by notice to the contrary.
All terms used in this Security that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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SECTION 204. Form of Legend for Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Security authenticated and delivered
hereunder shall bear one or more of the appropriate legends in substantially the
following forms:
[If Security is a Restricted Security, insert -
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO THE TRANSFEROR
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS. THIS SECURITY AND ANY RELATED DOCUMENTATION MAY
BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND
PROCEDURES FOR RESALES AND OTHER TRANSFERS OF THIS SECURITY TO REFLECT ANY
CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN
PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY.
THE HOLDER OF THIS SECURITY SHALL BE DEEMED, BY THE ACCEPTANCE HEREOF, TO HAVE
AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT. EACH PURCHASER OF THIS SECURITY OR
ANY INTEREST HEREIN IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.]
[If the Security is a Regulation S Security, insert -
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933 (THE "SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, OR DELIVERED IN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON UNLESS
THIS SECURITY IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS THEREOF IS AVAILABLE.]
[If the Security is a Global Security, insert -
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY
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<PAGE>
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[If the Security is a Global Security and The Depository Trust Company is to be
the Depositary therefor, insert -
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
BANK ONE, NATIONAL ASSOCIATION,
As Trustee
By
-------------------------
Authorized Officer
SECTION 206. Form of Guarantee
GUARANTEE OF H. J. HEINZ COMPANY
For value received, H. J. HEINZ COMPANY, a corporation duly organized
under the laws of the Commonwealth of Pennsylvania (the "Guarantor"), hereby
unconditionally and irrevocably guarantees (the "Guarantee") to and for the
benefit of the Holder of the Note (the "Note") upon which this Guarantee is
endorsed, being one of the o% Guaranteed Notes due o issued in aggregate
principal amount of o (the "Notes") of H. J. Heinz Finance Company, a
corporation duly organized under the laws of the State of Delaware (the
"Issuer"), all obligations of the Issuer under such Note and under the Indenture
with respect to such Note (the "Indenture"), including the due and punctual
payment of the principal of (and any amount payable upon redemption, if any) and
interest on, any additional interest in respect of and of all other amounts
(including interest on defaulted payments to the extent permitted by law)
payable in respect of, such Note, when and as the same shall become due and
payable, whether at stated maturity, by declaration of acceleration, call for
redemption, purchase or otherwise, according to the terms and conditions of the
Note and the Indenture. In the case of a failure of the Issuer punctually to
make
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any such payment when and as the same shall become due and payable, the
Guarantor hereby agrees to cause such payment to be made at such time as if such
payment were made by the Issuer and according to the Terms and conditions of
such Note and the Indenture.
The Guarantor hereby agrees that its obligations hereunder and under
the Indenture shall be as if it were principal obligor and not merely surety,
and shall be unconditional, irrespective of the validity, regularity or
enforceability of such Note or the Indenture or the absence of any action to
enforce the same; any creation, exchange, release or non-perfection of any lien
on any collateral for all or of any of the Notes; any election by or on behalf
of any of the Holders of the Notes in any proceeding, any borrowing or grant of
a security interest by the Issuer or the disallowance of all or any portion of
the claims of the Trustee or any of the Holders for payment of any of the Notes
under, or the application of any provision of, any applicable bankruptcy,
insolvency, suspension of payments, reorganization or other similar law; or any
waiver or consent by or on behalf of the Holder of such Note with respect to any
provisions thereof or of the Indenture, the obtaining of any judgment against
the Issuer or any action to enforce the same or any other circumstances which
might otherwise constitute a legal or equitable discharge or defense of a
guarantor.
The Guarantor hereby waives the benefits of diligence, presentment or
demand of payment, any requirement that the Trustee or any of the Holders
protect, secure, perfect or insure any security interest in or other lien on any
property subject thereto or exhaust any right or take any action against the
Issuer or any other person or any collateral, any filing of claims with a court
in the event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest or notice with respect to such Note
or the indebtedness evidenced thereby and all demands whatsoever, and covenants
that this Guarantee will not be discharged except by complete performance of the
obligations contained in such Note and in this Guarantee. The Guarantor hereby
agrees that, in the event of a default in payment of principal of (or any amount
payable upon redemption, if any) or interest on such Note or of any Special
Interest or other amount (including such Special Interest) in respect of such
Note, whether at stated maturity, by acceleration, call for redemption, purchase
or otherwise, legal proceedings may be instituted by or on behalf of the Holder
of such Note directly against the Guarantor to enforce this Guarantee without
first proceeding against the Issuer. The Guarantor agrees that if, after the
occurrence and during the continuance of an event of default applicable to the
Notes, any of the Holders, or any representatives thereof, are prevented by
applicable law from exercising their respective rights to accelerate the
maturity of the Notes, to collect interest on the Notes or to enforce or
exercise any other right or remedy with respect to the Notes, the Guarantor
shall pay to the Trustee for the account of the Holders, upon demand therefor,
the amount that would otherwise have been due and payable had such rights and
remedies been permitted to be exercised by any of the Holders or their
representatives.
The Guarantor hereby irrevocably waives (i) any right to which it may
be entitled in connection with any obligation to sue the Issuer prior to a claim
being made against the Guarantor hereunder and (ii) any right to which it may be
entitled to have the assets of the Issuer first be used as payment of the
Issuer's or the Guarantor's obligations under the Note or this Guarantee,
respectively, prior to any amounts being claimed from or paid by the Guarantor
hereunder.
This Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Issuer in bankruptcy or
for liquidation or reorganization, should the Issuer become insolvent or make an
assignment for the benefit of creditors or should a
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receiver or trustee be appointed for all or any significant part of the Issuer's
assets, and shall, to the fullest extent permitted by law, continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Notes is, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee on the Notes,
whether as a "voidable preference," "fraudulent transfer" or otherwise, all as
though such payment or performance had not been made. In the event that any
payment, or any part thereof, is rescinded, reduced, restored or returned, the
Notes shall, to the fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or
returned.
No reference herein to the Indenture and no provision of this Guarantee
or of the Indenture shall alter or impair the Guarantee of the Guarantor, which
is absolute and unconditional, of the due and punctual payment of the principal
(and any amount payable upon redemption, if any) and interest on, and of all
Special Interest and other amounts (including as aforesaid) payable in respect
of the Note upon which this Guarantee is endorsed.
The Guarantor shall be subrogated to all rights of the Holder of such
Note against the Issuer in respect of any amounts paid by the Guarantor on
account of such Note pursuant to the provisions of this Guarantee or the
Indenture; PROVIDED, HOWEVER, that the Guarantor shall not be entitled to
enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of (and any amount payable upon redemption, if
any) and interest on, and of all Special Interest and other amounts (including
as aforesaid) payable in respect of, such Note and all the other Notes shall
have been irrevocably paid in full.
The Guarantor agrees to pay to the Holder of the Note upon which this
Guarantee is endorsed on demand all reasonable out-of--pocket expenses
(including reasonable fees and expenses of counsel) incurred by such Holder that
in any way relate to the enforcement of the rights of such Holder under this
Guarantee; PROVIDED that the Guarantor shall not be liable for any such expenses
if (i) no payment under this Guarantee is due or (ii) the Guarantor shall not
have received such documentation of such expenses as it may reasonably require.
The Guarantor hereby makes, for the benefit of the Holder of the Note
upon which this Guarantee is endorsed, the covenants and agreements applicable
to it set forth in the Indenture, all of which shall be enforceable by the
Holder of such Security, subject to the Terms and conditions and the terms of
the Indenture, directly against the Guarantor.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Note upon which this Guarantee is
endorsed shall have been executed by the Trustee (or an authenticating agent)
under the Indenture.
All capitalized terms used in this Guarantee shall have the meanings
assigned to them in the Note upon which this Guarantee is endorsed or in the
Indenture referred to in such Security.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS
PRINCIPLES THEREOF.
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<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed and its corporate seal to be affixed hereto.
H. J. HEINZ COMPANY
As Guarantor
By:
----------------------------------------
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officer's Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on
any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
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(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series
may be redeemed, in whole or in part, at the option of the Company and,
if other than by a Board Resolution, the manner in which any election
by the Company to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof or at the option of
any remarketing dealer and the period or periods within which, the
price or prices at which and the terms and conditions upon which any
Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall
be issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index
or pursuant to a formula, the manner in which such amounts shall be
determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable
and the manner of determining the equivalent thereof in the currency of
the United States of America for any purpose, including for purposes of
the definition of "Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other than
that or those in which such Securities are stated to be payable, the
currency, currencies or currency units in which the principal of or any
premium or interest on such Securities as to which such election is
made shall be payable, the periods within which and the terms and
conditions upon which such election is to be made and the amount so
payable (or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to
be the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof
which shall be due and payable upon any Maturity other than the Stated
Maturity or which shall be deemed to be Outstanding as of any date
prior to the Stated Maturity (or, in any such case, the manner in which
such amount deemed to be the principal amount shall be determined);
(15) if applicable, that any Securities of the series shall be issuable
in whole or in part in the form of one or more Global Securities and,
in such case, the respective
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Depositaries for such Global Securities, the form of any legend or
legends which shall be borne by any such Global Security in addition to
or in lieu of that set forth in Section 204 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the last
paragraph of Section 305(a) in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered,
in the name or names of Persons other than the Depositary for such
Global Security or a nominee thereof;
(16) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 502;
(17) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officer's Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, a Vice Chairman of the Board, its President, a Vice
President, or its Treasurer under its corporate seal reproduced thereon attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
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At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company and the Guarantor to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has
been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company and the Guarantor
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
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SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company and the Guarantor may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company and the Guarantor shall
execute and the Trustee shall authenticate and deliver in exchange therefor one
or more definitive Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange; Certain
Transfers and Exchanges.
(a) Registration of Transfer and Exchange Generally. The Company shall
cause to be kept at the Corporate Trust Office of the Trustee a register (the
register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of a series
at the office or agency of the Company in a Place of Payment for that series,
the Company and the Guarantor shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company and the Guarantor shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
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Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor)
are to be redeemed in part, the Company shall not be required (A) to issue,
register the transfer of or exchange any Securities of that series (or of that
series and specified tenor, as the case may be) during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (B) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary
for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (ii) has ceased
to be a clearing agency registered under the Exchange Act, (B) there
shall have occurred and be continuing an Event of Default with respect
to such Global Security or (C) there shall exist such circumstances, if
any, in addition to or in lieu of the foregoing as have been specified
for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall
be registered in such names as the Depositary for such Global Security
shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306,
906 or 1107 or otherwise, shall be authenticated and delivered in the
form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such
Global Security or a nominee thereof.
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(b) Certain Transfers and Exchanges. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 305(b) shall be made only in accordance with this Section
305(b).
(i) Restricted Global Security to Regulation S Global Security. If the
owner of a beneficial interest in a Restricted Global Security wishes at any
time to transfer such interest to a Person who wishes to acquire the same in the
form of a beneficial interest in a Regulation S Global Security, such transfer
may be effected only in accordance with the provisions of this Clause (b)(i) and
Clause (b)(iv) below and subject to the Applicable Procedures. Upon receipt by
the Security Registrar of (A) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Regulation S Global
Security in a specified principal amount be credited to a specified Agent
Member's account and that a beneficial interest in the Restricted Global
Security in an equal principal amount be debited from another specified Agent
Member's account and (B) a Regulation S Certificate, satisfactory to the
Security Registrar and the Trustee and duly executed by the owner of such
beneficial interest in the Restricted Global Security or his attorney duly
authorized in writing, then the Security Registrar, subject to Clause (b)(iv)
below, shall reduce the principal amount of the Restricted Global Security and
increase the principal amount of the Regulation S Global Security by such
specified principal amount.
(ii) Regulation S Global Security to Restricted Global Security. If the
owner of a beneficial interest in a Regulation S Global Security wishes at any
time to transfer such interest to a Person who wishes to acquire the same in the
form of a beneficial interest in a Restricted Global Security, such transfer may
be effected only in accordance with this Clause (b)(ii) and subject to the
Applicable Procedures. Upon receipt by the Security Registrar of (A) an order
given by the Depositary or its authorized representative directing that a
beneficial interest in the Restricted Global Security in a specified principal
amount be credited to a specified Agent Member's account and that a beneficial
interest in the Regulation S Global Security in an equal principal amount be
debited from another specified Agent Member's account and (B) if such transfer
is to occur during a Restricted Period, a Restricted Securities Certificate,
satisfactory to the Security Registrar and the Trustee and duly executed by the
owner of such beneficial interest in the Regulation S Global Security or his
attorney duly authorized in writing, then the Security Registrar shall reduce
the principal amount of the Regulation S Global Security and increase the
principal amount of the Restricted Global Security by such specified principal
amount. If transfers under this Clause (b)(ii) occur after a Restricted Period,
no Restricted Securities Certificates will be required.
(iii) Non-Global Security to Non-Global Security. A Security that is
not a Global Security may be transferred, in whole or in part, to a Person who
takes delivery in the form of another Security that is not a Global Security as
provided in Section 305(a), provided that, if the Security to be transferred in
whole or in part is a Restricted Security, then the Security Registrar shall
have received a Restricted Securities Certificate, satisfactory to the Security
Registrar and the Trustee and duly executed by the transferor Holder of his
attorney duly authorized in writing, in which case the transferee Holder shall
take delivery in the form of a Restricted Security (subject in every case to
Section 305(c)).
(iv) Regulation S Global Security to be Held Through Euroclear or
Clearstream during Restricted Period. The Company shall use its best efforts to
cause the Depositary to ensure that
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beneficial interests in a Regulation S Global Security may be held only in or
through accounts maintained at the Depositary by Euroclear or Clearstream (or by
Agent Members acting for the account thereof), and no person shall be entitled
to effect any transfer or exchange that would result in any such interest being
held otherwise than in or through such an account, provided that this Clause
(b)(iv) shall not prohibit any transfer or exchange of such an interest in
accordance with Clause (b)(ii) above.
(v) Restricted Non-Global Security to Restricted Global Security or
Regulation S Global Security. If the Holder of a Restricted Security (other than
a Global Security) wishes at any time to transfer all or any portion of such
Security to a Person who wishes to take delivery thereof in the form of a
beneficial interest in a Restricted Global Security or a Regulation S Global
Security, such transfer may be effected only in accordance with the provisions
of this Clause (b)(v) and Clause (b)(iv) above and subject to the Applicable
Procedures. Upon receipt by the Security Registrar of (A) such Security as
provided in Section 305(a) and instructions satisfactory to the Security
Registrar and the Trustee directing that a beneficial interest in a Restricted
Global Security or Regulation S Global Security in a specified principal amount
not greater than the principal amount of such Security be credited to a
specified Agent Member's account and (B) a Restricted Securities Certificate, if
the specified account is to be credited with a beneficial interest in a
Restricted Global Security, or a Regulation S Certificate, if the specified
account is to be credited with a beneficial interest in a Regulation S Global
Security, in either case satisfactory to the Security Registrar and the Trustee
and duly executed by such Holder or his attorney duly authorized in writing,
then the Security Registrar, subject to Clause (b)(iv) above, shall cancel such
Security (and issue a new Security in respect of any untransferred portion
thereof) and increase the principal amount of the Restricted Global Security or
the Regulation S Global Security, as the case may be, by the specified principal
amount, both as provided in Section 305(a).
(c) Securities Act Legends. Restricted Securities and their Successor
Securities shall bear a Restricted Securities Legend, and Regulation S
Securities and their Successor Securities shall bear a Regulation S Legend,
subject to the following:
(i) subject to the following Clauses of this Section 305(c), a Security
or any portion thereof which is exchanged, upon transfer or otherwise, for a
Global Security or any portion thereof shall bear the Securities Act Legend
borne by such Global Security while represented thereby;
(ii) subject to the following Clauses of this Section 305(c), a new
Security which is not a Global Security and is issued in exchange for another
Security (including a Global Security) or any portion thereof, upon transfer or
otherwise, shall bear the Securities Act Legend borne by such other Security,
provided, that, if such new Security is required pursuant to Section 305(b)(v)
to be issued in the form of a Restricted Security, it shall bear a Restricted
Securities Legend and, if such new Security is so required to be issued in the
form of a Regulation S Security, it shall bear a Regulation S Legend;
(iii) at any time after the Securities may be freely transferred
without registration under the Securities Act or without being subject to
transfer restrictions pursuant to the Securities Act, a new Security which does
not bear a Securities Act Legend may be issued in exchange for or in lieu of a
Security (other than a Global Security) or any portion thereof which bears such
a legend if the Security Registrar has received an Unrestricted Securities
Certificate, satisfactory to the
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Security Registrar and Trustee and duly executed by the Holder of such legended
Security or his attorney duly authorized in writing, and after such date and
receipt of such certificate, the Trustee shall authenticate and deliver such a
new Security in exchange for or in lieu of such other Security as provided in
this Article Three;
(iv) a new Security which does not bear a Securities Act Legend may be
issued in exchange for or in lieu of a Security (other than a Global Security)
or any portion thereof which bears such a legend if, in the Company's judgment,
placing such a legend upon such new Security is not necessary to ensure
compliance with the registration requirements of the Securities Act, and the
Trustee, at the direction of the Company, shall authenticate and deliver such a
new Security as provided in this Article Three; and
(v) notwithstanding the foregoing provisions of this Section 305(c), a
Successor Security of a Security that does not bear a particular form of
Securities Act Legend shall not bear such form of legend unless the Company has
reasonable cause to believe that such Successor Security is a "restricted
security" within the meaning of Rule 144, in which case the Trustee, at the
direction of the Company, shall authenticate and deliver a new Security bearing
a Restricted Securities Legend in exchange for such Successor Security as
provided in this Article Three.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest (including any Special Interest)
on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given to each Holder of Securities of such
series in the manner set forth in Section 106, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Guarantor, the Trustee and any agent of the Company, or the
Trustee may treat the Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 307) any interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any agent of the Company,
the Guarantor or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced
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or paid as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation;
or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company or the Guarantor, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose money in an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal and any premium and interest
to the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(2) the Company or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company and the Guarantor; and
(3) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due
by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company or the Guarantor in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of
series of Securities other than that series), and continuance of such
default or breach for a period of 90 days after there has been given,
by registered or certified mail, to the Company or the Guarantor, as
the case may be, by the Trustee or to the Company or the Guarantor, as
the case may be, and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or the Guarantor
in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company or the Guarantor a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company or the Guarantor under any applicable Federal or State
law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or the
Guarantor or of any substantial part of its property, or ordering the
winding up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company or the Guarantor of a voluntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company or the Guarantor in an involuntary case or proceeding under any
applicable
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Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or the Guarantor or of any substantial part of
its property, or the making by either of them of an assignment for the
benefit of creditors, or the admission by either of them in writing of
its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company or the Guarantor in
furtherance of any such action;
(7) any other Event of Default provided with respect to Securities of
that series; or
(8) The Guarantor shall contest the validity of or the enforceability
of the Guarantee or any obligation of the Guarantor under the Guarantee
shall not be (or is claimed by the Guarantor not to be) in full force
and effect.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company and the Guarantor (and to the Trustee, the Company and
the Guarantor if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. If an
Event of Default specified in Section 501(5) or 501 (6) with respect to
Securities of any series at the time Outstanding occurs, the principal amount of
all the Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) shall automatically, and
without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company, the
Guarantor and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company or the Guarantor has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
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(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or the Guarantee or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, the
Guarantor (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute
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the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
and
SECOND: To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and any premium and interest,
respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture
or the Guarantee, or for the appointment of a receiver or trustee, or for any
other remedy hereunder or under the Guarantee, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that
series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
interest and any other amounts on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
including under the Guarantee, and such rights shall not be impaired without the
consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture or the Guarantee and such proceeding
has been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, the Trustee and the
Holders shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein or in the Guarantee conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest or
other amounts payable on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or the Guarantee , or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit, and
may assess costs against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act; provided that neither this Section
nor the Trust Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit instituted by the
Company or the Guarantor.
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SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by
a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officer's Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
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(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company or the Guarantor, as applicable, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture, the Guarantee or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company or the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
The provisions of this Section shall survive the resignation or removal
of the Trustee and the satisfaction and discharge of the Indenture.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, and has a combined
capital and surplus of at least $50,000,000 . If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company and the
Guarantor. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company, the Guarantor and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611,
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become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company, the Guarantor and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company, the Guarantor or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver a written instrument wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such written instrument the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all
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property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company,
the Guarantor (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company or the Guarantor (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the
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combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee, the Company and the Guarantor. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent, the Company and the Guarantor. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and the Guarantor
and shall give notice of such appointment in the manner provided in Section 106
to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
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BANK ONE, NATIONAL ASSOCIATION
As Trustee
By
-------------------------------------
As Authenticating Agent
By
-------------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not more than 15 days after such semi-annual dates
as may be specified by the Trustee, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of
Securities of each series as of such semi-annual date as the case may
be, and
(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar, no
such list need be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Guarantor nor
the Trustee nor any agent of any of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
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SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission with the Company and with the
Guarantor. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
SECTION 704. Reports by Company and the Guarantor.
The Company and the Guarantor shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company or Guarantor May Consolidate, Etc., Only on Certain Terms.
Neither the Company nor the Guarantor shall consolidate with or merge
into any other Person or sell, convey, transfer or lease its properties and
assets substantially as an entirety to any Person unless:
(1) the Person formed by such consolidation or into which the Company
or the Guarantor is merged or the Person which acquires by sale,
conveyance, transfer or lease the properties and assets of the Company
or the Guarantor substantially as an entirety shall be a corporation
organized and existing under the laws of the United States, any state
thereof or the District of Columbia;
(2) the Person formed by such consolidation or into which the Company
or the Guarantor is merged or the Person which acquires by sale,
conveyance, transfer or lease the properties and assets of the Company
or the Guarantor substantially as an entirety shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest and
other amounts payable, if any, on all the Securities and the
performance of every covenant of this Indenture or the Guarantee on the
part of the Company or the Guarantor to be performed or observed;
(3) immediately after giving effect to such transaction, and treating
any indebtedness which becomes an obligation of the Company or the
Guarantor or a Subsidiary as a result of such transaction as having
been incurred by the Company or the Guarantor or such Subsidiary at the
time of such transaction no Event of Default, and no event which, after
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notice or lapse of time, or both, would become an Event of Default,
shall have happened and be continuing; and
(4) the Company or the Guarantor has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, sale, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company or the Guarantor with, or merger
of the Company or the Guarantor into, any other Person or any conveyance,
transfer or lease of the properties and assets of the Company or the Guarantor
substantially as an entirety in accordance with Section 801, the successor
Person formed by such consolidation or into which the Company or the Guarantor
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company or the Guarantor under this Indenture or the Guarantee with the same
effect as if such successor Person had been named as the Company as the case may
be herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantor, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or the
Guarantor and the assumption by any such successor of the covenants of
the Company or the Guarantor herein and in the Securities or the
Guarantee, as the case may be; or
(2) to add to the covenants of the Company or the Guarantor for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company or the Guarantor; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
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(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination (A) shall neither (i) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision
nor (ii) modify the rights of the Holder of any such Security with
respect to such provision or (B) shall become effective only when there
is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of Section
1004 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this Clause (9) shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company , the
Guarantor and the Trustee, the Company and the Guarantor, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any installment
of or terms of purchase of principal of or interest on, any Security,
or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or reduce the
amount of the principal of an Original Issue Discount Security or any
other Security which would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change
any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable,
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or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any such percentage or to provide that
certain other provisions of this Indenture and the Guarantee cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section and Section 1009, or the deletion of this
proviso, in accordance with the requirements of Sections 611 and
901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 905. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest and other amounts payable, if any, on the Securities of that series
in accordance with the terms of the Securities and this Indenture. The Guarantor
covenants that it will, as and when any amounts are due hereunder or under any
Security, duly and punctually pay such amounts as provided in the Guarantee.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company or the Guarantor in respect of the Securities of that series
and this Indenture or the Guarantee may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and each of the Company
and the Guarantor hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until
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such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in each Place of
Payment, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. Restrictions on Secured Debt.
The Guarantor covenants and agrees for the benefit of each series of
Securities, other than any series established by or pursuant to a Board
Resolution, Officer's Certificate or in one or more supplemental indentures
hereto which specifically provides otherwise, that it will not itself, and will
not permit any Restricted Subsidiary to, incur, issue, assume, or guarantee any
loans, whether or not evidenced by negotiable instruments or securities, or any
notes, bonds, debentures or other similar evidences of indebtedness for money
borrowed (loans, and notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed being hereinafter in
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this Section 1004 called "Debt"), secured after the date hereof by pledge of, or
mortgage or lien on, any Principal Property of the Guarantor or any Restricted
Subsidiary or any shares of Capital Stock of or Debt of any Restricted
Subsidiary (mortgages, pledges and liens being hereinafter in this Section 1004
called "Mortgage" or "Mortgages"), without effectively providing that the
Securities, other than Securities of a series not entitled to the benefits of
this covenant (together with, if the Guarantor shall so determine, any other
Debt of the Guarantor or such Restricted Subsidiary then existing or thereafter
created which is not subordinate to the Securities) shall be secured equally and
ratably with (or, at the option of the Guarantor, prior to) such secured Debt,
so long as such secured Debt shall be so secured, unless, after giving effect
thereto, the aggregate amount of all such secured Debt would not exceed 10% of
Consolidated Net Assets; provided, however, that this Section 1004 shall not
apply to, and there shall be excluded from secured Debt in any computation under
this Section 1004, Debt secured by:
(1) Mortgages on property of, or on any shares of Capital Stock of or
Debt of, any corporation existing at the time such corporation becomes
a Restricted Subsidiary;
(2) Mortgages in favor of the Guarantor or any Restricted Subsidiary;
(3) Mortgages in favor of any governmental body to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(4) Mortgages on property, shares of Capital Stock or Debt existing at
the time of acquisition thereof (including acquisition through merger
or consolidation) or to secure the payment of all or any part of the
purchase price thereof or construction thereon or to secure any Debt
incurred prior to, at the time of, or within 360 days after the later
of the acquisition of such property, shares of Capital Stock or Debt or
the completion of construction for the purpose of financing all or any
part of the purchase price thereof or construction thereon;
(5) Mortgages securing obligations issued by a State, territory or
possession of the United States, any political subdivision of any of
the foregoing, or the District of Columbia, or any instrumentality of
any of the foregoing to finance the acquisition or construction of
property, and on which the interest is not, in the opinion of tax
counsel of recognized standing or in accordance with a ruling issued by
the Internal Revenue Service, includible in gross income of the holder
by reason of Section 103 (a) (1) of the Internal Revenue Code (or any
successor to such provision or any other similar statute of the United
States) as in effect at the time of the issuance of such obligations;
(6) Mechanics', materialmen's, carriers' or other like liens arising in
the ordinary course of business (including construction of facilities)
in respect of obligations which are not due or which are being
contested in good faith;
(7) Any mortgage arising by reason of deposits with, or the giving of
any form of security to, any governmental agency or any body created or
approved by law or governmental regulations, which is required by law
or governmental regulation as a condition to the transaction of any
business, or the exercise of any privilege, franchise or license;
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(8) Mortgages for taxes, assessments or governmental charges or levies
not yet delinquent, or mortgages for taxes, assessments or governmental
charges or levies already delinquent but the validity of which is being
contested in good faith;
(9) Mortgages (including judgment liens) arising in connection with
legal proceedings so long as such proceedings are being contested in
good faith and, in the case of judgment liens, execution thereon is
stayed;
(10) Mortgages existing at the date of this Indenture; and
(11) Any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any mortgage
referred to in the foregoing clauses (1) to (10), inclusive; provided,
however, that such extension, renewal or replacement Mortgage shall be
limited to all or part of the same property, shares of Capital Stock or
Debt that secured the Mortgage extended, renewed or replaced (plus
improvements on such property).
SECTION 1005. Statement by Officer as to Default.
The Company and the Guarantor will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending after the date
hereof, an Officer's Certificate, complying with Section 314(a)(4) of the Trust
Indenture Act, stating whether or not to the best knowledge of the signers
thereof the Company or the Guarantor is in default in the performance and
observance of any of the terms, provisions and conditions of this Indenture or
the Guarantee (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company or the Guarantor shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
SECTION 1006. Existence.
Subject to Article Eight, each of the Company and the Guarantor will do
or cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and franchises; provided,
however, that neither the Company nor the Guarantor shall be required to
preserve any such right or franchise if its Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of its
business and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1007. Maintenance of Properties.
The Guarantor will cause all properties used or useful in the conduct
of its business or the business of any Restricted Subsidiary to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Guarantor may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Guarantor from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Guarantor, desirable in the conduct of
its business or the business of any Restricted Subsidiary and not
disadvantageous in any material respect to the Holders.
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SECTION 1008. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1009. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 301(17),
901(2) or 901(7) for the benefit of the Holders of such series or in Section
1004 or 1007, if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
SECTION 1010. Registration Rights.
Each of the Company and the Guarantor agrees that the Holders of
Original Securities are entitled to the benefits of the Registration Rights
Agreement, and each of the Company and the Guarantor covenants that it will
perform or cause to be performed all duties and obligations arising thereunder.
Other than the payment of Special Interest, the rights and remedies of the
Holders for a breach of this Section 1010 are set forth in the Registration
Rights Agreement. This Section 1010 shall not apply to Exchange Securities.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for such Securities and in
the form of Security contemplated by Article Two) in accordance with this
Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or in another manner specified as contemplated by Section
301 for such Securities. In case of any redemption at the election of the
Company of less than all the Securities of any series
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(including any such redemption affecting only a single Security), the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, the Redemption Price; including reasonable
detail as to its computation, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
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SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities, the cash amount of any
sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund
Not less than 60 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will
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also deliver to the Trustee any Securities to be so delivered. Not less than 30
days prior to each such sinking fund payment date, the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
GUARANTEE OF THE SECURITIES
SECTION 1301. Guarantee.
Subject to the provisions of this Article Thirteen, the Guarantor
hereby unconditionally guarantees, on an unsecured basis, to each Holder of a
Security authenticated and delivered by the Trustee and to the Trustee and its
successors, irrespective of the validity and enforceability of this Indenture,
the Securities or the obligations of the Company or any other Guarantor to the
Holders or the Trustee hereunder or thereunder, that: (a) the principal of (and
premium, if any) and interest on the Securities (including any Special Interest,
Defaulted Interest and other amounts, if any, payable) will be duly and
punctually paid in full when due, whether at maturity, by acceleration, call for
redemption, purchase or otherwise, and all obligations of the Company or the
Guarantor to the Holders or the Trustee hereunder or thereunder (including
amounts due the Trustee under Section 607 hereof) or under the Securities
(including fees, expenses or other disbursements) will be promptly paid in full
or performed, all in accordance with the terms hereof and thereof; and (b) in
case of any extension of time of payment or renewal of any Securities or any of
such other obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
maturity, by acceleration, call for redemption, purchase or otherwise (all such
obligations guaranteed by the Guarantor, the "Guaranteed Obligations"). The
guarantees of the Guarantor under this Article Thirteen are herein referred to
as the "Guarantee". Failing payment when due of any amount so guaranteed, or
failing performance of any other obligation of the Company to the Holders, for
whatever reason, the Guarantor will be obligated to pay, or to perform or cause
the performance of, the same immediately. An Event of Default under this
Indenture or the Securities shall constitute an event of default under this
Guarantee the Holders of Securities or the Trustee to accelerate the obligations
of the Guarantor hereunder in the same manner and to the same extent as the
obligations of the Company.
The Guarantor agrees to pay any and all fees and expenses (including
reasonable attorney's fees and expenses) incurred by the Trustee or the Holders
in enforcing any rights under this Article Thirteen with respect to the
Guarantor.
Without limiting the generality of the foregoing, this Guarantee
guarantees, to the extent provided herein, the payment of all amounts that
constitute part of the Guaranteed Obligations and would be owed by the Company
under this Indenture or the Securities but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company.
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No stockholder, officer, director, employee or incorporator, past,
present or future, of any Guarantor, as such, shall have any personal liability
under this Guarantee by reason of his, her or its status as such stockholder,
officer, director, employee or incorporator.
SECTION 1302. Execution and Delivery of Guarantee.
The Guarantee to be endorsed on the Securities shall include the terms
of the Guarantees set forth in this Article Thirteen and any other terms that
may be set forth in the form established pursuant to Section 206. The Guarantor
hereby agrees to execute the Guarantee in the form established pursuant to
Section 206, to be endorsed on each Security authenticated and delivered by the
Trustee.
The Guarantee shall be executed on behalf of the Guarantor by an
Officer of the Guarantor. The signature of such Officer on the Guarantee may be
manual or facsimile.
A Guarantee bearing the manual or facsimile signature of an individual
who was at any time the proper officer of the Guarantor shall bind the
Guarantor, notwithstanding that such individual has ceased to hold such office
prior to the authentication and delivery of the Security on which such Guarantee
is endorsed or did not hold such office at the date of such Guarantee.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantor. The Guarantor hereby agrees that its
respective Guarantee set forth in Section 1301 shall remain in full force and
effect notwithstanding any failure to endorse a Guarantee on any Security.
SECTION 1303. Obligations of the Guarantor Unconditional.
Nothing contained in this Article Thirteen or elsewhere in this
Indenture or in any Security is intended to or shall impair, as between the
Guarantor and the Holders and the Trustee, the obligation of the Guarantor,
which is absolute and unconditional, to pay to the Holders and the Trustee the
principal of (and premium, if any) and interest (including Special Interest,
Defaulted Interest and other amounts, if any, payable) on the Securities (and to
the Trustee amounts due under Section 607) as and when the same shall become due
and payable in accordance with the provisions of this Guarantee, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising all
remedies otherwise permitted by applicable law upon Default under this
Indenture. Without limiting the generality of the foregoing, it is agreed that
the occurrence of any one or more of the following shall not affect the
liability of any Guarantor hereunder:
(a) the lack of validity, regularity or enforceability of this
Indenture or the Securities with respect to the Company or the agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of any of the Guaranteed Obligations, or any other amendment or
waiver of or any consent to departure from this Indenture;
(c) any amendment or modification of or deletion from or addition or
supplement to or other change in the Guarantee, the Indenture or the Securities
or any other instrument or agreement applicable to any of the parties to the
Guarantee, the Indenture or the Securities;
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(d) any furnishing or acceptance of any security or any guarantee or
other liability of any Subsidiary or any other party, or any release of any
security or any guarantee or other liability of any Subsidiary or any other
party, for the Guarantee Obligations, or the failure of any security or any
guarantee or other liability of any Subsidiary or any other party or the failure
of any Person to perfect any interest in any collateral;
(e) any failure, omission or delay on the part of the Company, to
conform or comply with any term of the Indenture or the Securities or any other
instrument or agreement referred to in paragraph (a) above, including, without
limitation, failure to give notice to the Guarantor or the Trustee of the
occurrence of an Event of Default;
(f) any waiver of the payment, performance or observance of any of the
obligations, conditions, covenants or agreements contained in the Guarantee, the
Indenture or the Securities, or any other waiver, consent, extension,
indulgence, compromise, settlement, release or other action or inaction under or
in respect of the Guarantee, the Indenture or the Securities or any other
instrument or agreement referred to in paragraph (a) above or any obligation or
liability of the Company, or any exercise or non-exercise of any right, remedy,
power or privilege under or in respect of any such instrument or agreement or
any such obligation or liability;
(g) any failure, omission or delay on the part of the Trustee or any
Holder of Securities to enforce, assert, exercise or continue exercising any
right, power or remedy conferred on it in the Guarantee or the Indenture, or any
such failure, omission or delay on the part of the Trustee or any Holder of
Securities in connection with the Guarantee, the Indenture or the Securities, or
any other action on the part of the Trustee or any Holder of Securities;
(h) the assignment of any right, title or interest of the Trustee or
any Holder in this Indenture or the Securities to any other Person;
(i) any voluntary or involuntary bankruptcy, insolvency, suspension of
payments, reorganization, arrangement, readjustment, assignment for the benefit
of creditors, receivership, liquidation or similar proceedings with respect to
the Company, the Guarantor or any other Person or any of their respective
properties or creditors, or any action taken by any trustee, receiver or sindico
or by any court in any such proceeding;
(j) any limitation on the liability or obligations of the Company or
any other Person under the Guarantee, the Indenture or the Securities, or any
partial discharge, cancellation or unenforceability of the Guarantee, the
Indenture or the Securities or any other agreement or instrument referred to in
paragraph (c) above or any term hereof, to the extent not mutually agreed upon
by the parties hereto;
(k) any merger or consolidation of the Company or the Guarantor into or
with any other corporation or any sale, lease or transfer of any of the assets
of the Company or any Guarantor to any other Person;
(l) any change in the ownership of any shares of capital stock of the
Guarantor, or any change in the corporate relationship between the Company and
the Guarantor, or any termination of such relationship, or any change in the
corporate existence, structure, or ownership of the Company;
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(m) any release or discharge, by operation of law, of the Guarantor
from the performance or observance of any obligation, covenant or agreement
contained in the Guarantee, the Indenture or the Securities;
(n) any action, failure, omission or delay on the part of the Trustee
or any Holder of Securities that may impede any Guarantor from acquiring or
subrogating such Holder's or Trustee's rights or benefits; or
(o) any other occurrence, circumstance, happening or event whatsoever,
whether similar or dissimilar to the foregoing, whether foreseen or unforeseen,
and any other circumstance that might otherwise constitute a legal defense or
discharge of the liabilities of the Guarantor or that might otherwise limit
recourse against the Guarantor; it being the intent of the Guarantor that its
obligations hereunder shall not be discharged except by payment of all amounts
owing pursuant to this Indenture or the Securities.
The Guarantee shall continue to be effective or be reinstated, as the
case may be, if at any time any payment or performance with respect to any of
the Guaranteed Obligations is rescinded or must otherwise be returned by the
Trustee, any Holder or any other Person upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, all as though such payment or
performance had not been made or occurred. In the event that any payment, or any
part thereof, is rescinded or must otherwise be returned, the Guaranteed
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded or returned. The obligations of the Guarantor under the
Guarantee shall not be subject to reduction, termination or other impairment by
any set-off, recoupment, counterclaim or defense or for any other reason.
SECTION 1304. Waivers.
The Guarantor hereby irrevocably waives, to the extent permitted by
applicable law:
(a) promptness, demand for payment, diligence, presentment, notice of
acceptance and any other notice with respect to any of the Guarantee Obligations
and the Guarantee;
(b) any requirement that the Trustee, any Holder or any other Person
protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right, sue or take any action against the Company or any other
Person, or obtain any relief pursuant to this Indenture or pursue any other
available remedy prior to making a claim against any Guarantor hereunder;
(c) filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest or notice with respect to such Security or the Indebtedness
evidenced thereby and all demands whatsoever;
(d) any defense arising by reason of any claim or defense based upon an
election of remedies by the Trustee or any Holder that in any manner impairs,
reduces, releases or otherwise adversely affects its subrogation, contribution
or reimbursement rights or other rights to proceed against the Company or any
other Person;
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(e) any right to which it may be entitled to have the assets of the
Company first be used as payment of the Company's or the Guarantor's obligations
hereunder prior to any amounts being claimed from or paid by such Guarantor
hereunder;
(f) any duty on the part of the Trustee or any Holder to disclose to
such Guarantor any matter, fact or thing relating to the business, operation or
condition of the Company and its assets now known or hereafter known by the
Trustee or such Holder; or
SECTION 1305. Waiver of Subrogation and Contribution.
The Guarantor hereby irrevocably waives any claim or other right that
it may now or hereafter acquire against the Company that arises from the
existence, payment, performance or enforcement of such Guarantor's obligations
under this Guarantee and this Indenture, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution, indemnification,
and any right to participate in any claim or remedy of the Trustee or any Holder
of Securities against the Company, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including, without
limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or Security on account of such claim or other rights. If any amount
shall be paid to the Guarantor in violation of the preceding sentence and the
Securities shall not have been paid in full, such amount shall have been deemed
to have been paid to such Guarantor for the benefit of, and held in trust for
the benefit of, the Holders of the Securities, and shall forthwith be paid to
the Trustee for the benefit of such Holders to be credited and applied upon the
Securities, whether matured or unmatured, in accordance with the terms of this
Indenture. The Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 1305 is knowingly made in contemplation of
such benefits.
The Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any Guaranteed Obligations
until payment in full of all Guaranteed Obligations. The Guarantor further
agrees that, as between itself, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the Guaranteed Obligations may
be accelerated as provided in Article Five hereof for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Guaranteed Obligations, and (y) in the event
of any declaration of acceleration of the Guarantee Obligations as provided in
Article Five hereof, the Guaranteed Obligations (whether or not due and payable)
shall forthwith become due and payable by such Guarantor for the purpose of this
Guarantee.
SECTION 1306. Certain Agreements.
The Guarantor covenants and agrees that, as a condition to the
acceptability of the Guarantee to the Trustee and the Holders, it will:
(a) preserve and maintain its existence, rights (contractual and
statutory) and franchises; provided, however, that the Guarantor shall not be
required to preserve any right or franchise if the board of directors of the
Guarantor shall determine that the preservation thereof is no longer
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desirable in the conduct of the business of the Guarantor and the loss thereof
is not disadvantageous in any material respect to the Guarantor or such Holders;
and
(b) not consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person whether or not affiliated with
the Guarantor unless:
(i) the Person formed by or surviving any such consolidation,
unless such successor entity is the Company or the Guarantor, unconditionally
assumes all the obligations of the Guarantor, pursuant to a supplemental
indenture in form and substance satisfactory to the Trustee, under the
Securities, the Indenture and the Guarantee on the terms set forth herein or
therein; and
(ii) immediately after giving effect to such transaction, no
default or Event of Default exists.
Any such consolidation, merger, sale, lease or conveyance is subject to
the condition that the Trustee receive an Officer's Certificate of the Guarantor
and an Opinion of Counsel to the effect that the merger, sale, lease or
conveyance, and the assumption by any successor entity, complies with the
provisions of this Article and that all conditions precedent herein provided for
relating to such transactions have been complied with.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Guarantee endorsed upon the Securities and the due and punctual performance of
all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as the Guarantor.
Such Guarantor's Guarantee shall in all respects have the same legal rank and
benefit under this Indenture theretofore and thereafter issued in accordance
with the terms of this Indenture as though such Guarantee had been issued at the
date of the execution hereof.
SECTION 1307. No Waiver; Cumulative Remedies.
No failure on the part of the Trustee or any Holder to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law. The Trustee and the Holders shall have all of the rights and remedies
granted in this Indenture and available at law or in equity, and these same
rights and remedies may be pursued separately, successively or concurrently
against the Company or the Guarantor.
SECTION 1308. Continuing Guarantee.
The Guarantee is a continuing guarantee and, except as otherwise
provided herein, shall (a) remain in full force and effect until the
satisfaction of the Guaranteed Obligations, (b) be binding upon the Guarantor
and (c) inure to the benefit of and be enforceable by the Trustee, the Holders
and their successors, transferees and assigns.
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ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1402
or Section 1403 applied to any Securities or any series of Securities, as the
case may be, designated pursuant to Section 301 as being defeasible pursuant to
such Section 1402 or 1403, in accordance with any applicable requirements
provided pursuant to Section 301 and upon compliance with the conditions set
forth below in this Article. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for
such Securities.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1403 applied to such Securities.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company and the Guarantor shall be released from their obligations under
Sections 1004 and 1007 and any covenants provided pursuant to Section 301(17),
901(2) or 901(7) for the benefit of the Holders of such Securities, and (2) the
occurrence of any event specified in Sections 501(4) (with respect to any of
Sections 1004 and 1007 and any such covenants provided pursuant to Section
301(17), 901(2) or 901(7)), and 501(7) shall be deemed not to be or result in an
Event of Default, in each case with respect to such Securities as provided in
this Section on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company and
the Guarantor may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
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any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section
1402 or Section 1403 to any Securities or any series of Securities, as the case
may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefits of the Holders
of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities. As used herein, "U.S.
Government Obligation" means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified in Clause
(x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal or interest evidenced by such
depositary receipt.
(2) In the event of an election to have Section 1402 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this
instrument, there has been a change in the applicable Federal income
tax law, in either case (A) or (B) to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Securities
will not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be
the case if such deposit, Defeasance and discharge were not to occur.
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(3) In the event of an election to have Section 1403 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner
and at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time of
such deposit or, with regard to any such event specified in Sections
501(6) and (7), at any time on or prior to the 90th day after the date
of such deposit (it being understood that this condition shall not be
deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the
meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company
within the meaning of the Investment Company Act unless such trust
shall be registered under such Act or exempt from registration
thereunder.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
SECTION 1405. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 1406, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1404 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
-76-
<PAGE>
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1404 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
SECTION 1406. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1402 or 1403 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1405 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
-77-
<PAGE>
IN WITNESS Whereof, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
H.J. HEINZ FINANCE COMPANY,
as Issuer
By /s/ Leonard A. Cullo, Jr.
--------------------------
Cullo, Jr. Leonard A.
President
H. J. Heinz Company,
as Guarantor
By /s/ Leonard A. Cullo, Jr.
--------------------------
Leonard A. Cullo, Jr.
Treasurer
BANK ONE, NATIONAL ASSOCIATION,
as Trustee
By /s/ Keith Richardson
--------------------------
Keith Richardson
Vice President
-78-
<PAGE>
COMMONWEALTH OF PENNSYLVANIA )
)ss.:
COUNTY OF ALLEGHENY )
On the 6th day of July, 2001, before me personally came
............................, to me known, who, being by me duly sworn, did
depose and say that he is .................... of
.................................., one of the corporations described in and
which executed the foregoing instrument; and that he signed his name thereto by
authority of the Board of Directors of said corporation.
- -----------------------------------
COMMONWEALTH OF PENNSYLVANIA )
)ss.:
COUNTY OF ALLEGHENY )
On the 6th day of July, 2001, before me personally came
............................, to me known, who, being by me duly sworn, did
depose and say that he is .................... of
.................................., one of the corporations described in and
which executed the foregoing instrument; and that he signed his name thereto by
authority of the Board of Directors of said corporation;.
- -----------------------------------
STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 6th day of July, 2001, before me personally came
............................, to me known, who, being by me duly sworn, did
depose and say that he is .................... of
.................................., one of the corporations described in and
which executed the foregoing instrument; and that he signed his name thereto by
authority of the Board of Directors of said corporation;.
-----------------------------------
-79-
<PAGE>
ANNEX A - Form of
Regulation S Certificate
REGULATION S CERTIFICATE
(For transfers pursuant to ss.305(b)(i) and (v)
of the Indenture)
Bank One, National Association
1 Bank One Plaza
Chicago, Illinois 60670-0126
Re: [INSERT TITLE OF SECURITIES] OF H.J. HEINZ FINANCE COMPANY (THE
---------------------------------------------------------------
"SECURITIES")
-------------
Reference is made to the Indenture, dated as of July 6, 2001 (the
"Indenture"), between H.J. Heinz Finance Company (the "Company"), H. J. Heinz
Company (the "Guarantor") and Bank One, National Association, as Trustee. Terms
used herein and defined in the Indenture or in Regulation S or Rule 144 under
the U.S. Securities Act of 1933, as amended (the "Securities Act") are used
herein as so defined.
This certificate relates to U.S. $__________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s).
------------------------
CERTIFICATE No(s).
------------------
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of a Regulation S
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
904 or Rule 144 under the Securities Act and with all applicable securities laws
of the states of the United States and other jurisdictions. Accordingly, the
Owner hereby further certifies as follows:
(1) RULE 904 TRANSFERS. If the transfer is being effected in accordance
with Rule 904;
<PAGE>
(A) the Owner is not a distributor of the Securities, an affiliate of
the Company or any such distributor or a person acting on behalf of any of the
foregoing;
(B) the offer of the Specified Securities was not made to a person in
the United States;
(C) either:
(i) at the time the buy order was originated, the Transferee was
outside the United States or the Owner and any person acting on its
behalf reasonably believed that the Transferee was outside the United
States, or
(ii) the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the Association of
International Bond Dealers, or another designated offshore securities
market and neither the Owner nor any person acting on its behalf knows
that the transaction has been prearranged with a buyer in the United
States;
(D) no directed selling efforts have been made in the United States by
or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has received a selling
concession, fee or other remuneration in respect of the Specified Securities,
and the transfer is to occur during the Restricted Period, then the requirements
of Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
(2) RULE 144 TRANSFERS. If the transfer is being effected pursuant to Rule
144:
(A) the transfer is occurring after a holding period of at least one
year (computed in accordance with paragraph (d) of Rule 144) has elapsed since
the Specified Securities were last acquired from the Company or from an
affiliate of the Company, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and notice requirements of
Rule 144; or
(B) the transfer is occurring after a holding period of at least two
years has elapsed since the Specified Securities were last acquired from the
Company or from an affiliate of the Company, whichever is later, and the Owner
is not, and during the preceding three months has not been, an affiliate of the
Company.
A-2
<PAGE>
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Purchasers.
Dated:
--------------------------
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this certificate.)
By:
--------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the
title of the person signing on behalf of the Undersigned must be
stated.)
A-3
<PAGE>
CONFORMED COPY
ANNEX B - Form of Restricted
Securities Certificate
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to ss.305(b)(ii), (iii) and (v)
of the Indenture)
Bank One, National Association
1 Bank One Plaza
Chicago, Illinois 60670-0126
Re: [INSERT TITLE OF SECURITIES] OF H.J. HEINZ FINANCE COMPANY (THE
----------------------------------------------------------------
"SECURITIES")
-------------
Reference is made to the Indenture, dated as of July 6, 2001 (the
"Indenture"), between H.J. Heinz Finance Company (the "Company"), H. J. Heinz
Company (the "Guarantor") and Bank One, National Association, as Trustee. Terms
used herein and defined in the Indenture or in Regulation S or Rule 144 under
the U.S. Securities Act of 1933, as amended (the "Securities Act") are used
herein as so defined.
This certificate relates to U.S. $ ___________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s).
----------------------------------------
CERTIFICATE No(s).
-------------------------
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by the Global Security, they are
held through the Depositary or an Agent Member in the name of the Undersigned,
as or on behalf of the Owner. If the Specified Securities are not represented by
a Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of a Restricted
Security. In connection with such transfer, the Owner hereby certifies that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
144A or Rule 144 under the Securities Act and all applicable securities laws of
the states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
(1) RULE 144A TRANSFERS. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a person that
the Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer"
B-1
<PAGE>
within the meaning of Rule 144A, acquiring for its own account or for
the account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner
may be relying on Rule 144A in connection with the transfer; and
(2) RULE 144 TRANSFERS. If the transfer is being effected pursuant to
Rule 144:
(A) the transfer is occurring after a holding period of at least
one year (computed in accordance with paragraph (d) of Rule 144) has
elapsed since the Specified Securities were last acquired from the
Company or from an affiliate of the Company, whichever is later, and is
being effected in accordance with the applicable amount, manner of sale
and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at least
two years has elapsed since the Specified Securities were last acquired
from the Company or from an affiliate of the Company, whichever is
later, and the Owner is not, and during the preceding three months has
not been, an affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Purchasers.
Dated:
----------------------------------------------
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this certificate.)
By:
----------------------------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the
title of the person signing on behalf of the Undersigned must be
stated.)
B-2
<PAGE>
CONFORMED COPY
ANNEX C - Form of Unrestricted
Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to ss.305(c) of the Indenture)
Bank One, National Association
1 Bank One Plaza
Chicago, Illinois 60670-0126
Re: [INSERT TITLE OF SECURITIES] OF H.J. HEINZ FINANCE COMPANY (THE
---------------------------------------------------------------
"SECURITIES")
-------------
Reference is made to the Indenture, dated as of July 6, 2001 (the
"Indenture"), between H.J. Heinz Finance Company (the "Company"), H. J. Heinz
Company (the "Guarantor") and Bank One, National Association, as Trustee. Terms
used herein and defined in the Indenture or in Regulation S or Rule 144 under
the U.S. Securities Act of 1933, as amended (the "Securities Act") are used
herein as so defined.
This certificate relates to U.S. $_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s).
---------------------------
CERTIFICATE No(s).
---------------------
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Securities Act Legend pursuant to Section 305(c) of the
Indenture. In connection with such exchange, the Owner hereby certifies that the
exchange is occurring after a holding period of at least two years (computed in
accordance with paragraph (d) of Rule 144) has elapsed since the Specified
Securities were last acquired from the Company or from an affiliate of the
Company, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
C-1
<PAGE>
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Purchasers.
Dated: ----------------
- -------------
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:
-----------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the
title of the person signing on behalf of the Undersigned must be
stated.)
C-2
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.A.7
<SEQUENCE>4
<FILENAME>j9491701exv10waw7.txt
<DESCRIPTION>EXECUTIVE DEFERRED COMPENSATION PLAN
<TEXT>
<PAGE>
Exhibit 10a(vii)
H. J. HEINZ COMPANY
EXECUTIVE DEFERRED COMPENSATION PLAN
(AS AMENDED AND RESTATED ON DECEMBER 27, 2001)
<PAGE>
CONTENTS
- ---------------------------------------------------------------------------
PAGE
ARTICLE 1 EFFECTIVE DATE AND PURPOSE 1
ARTICLE 2 ADMINISTRATION 1
ARTICLE 3 ELIGIBILITY AND PARTICIPATION 2
ARTICLE 4 ELECTIVE DEFERRALS 3
ARTICLE 5 NONELECTIVE DEFERRALS 6
ARTICLE 6 DEFERRED COMPENSATION ACCOUNTS 9
ARTICLE 7 RIGHTS OF PARTICIPANTS 12
ARTICLE 8 WITHHOLDING OF TAXES 13
ARTICLE 9 AMENDMENT AND TERMINATION 13
ARTICLE 10 MISCELLANEOUS 13
<PAGE>
H. J. HEINZ COMPANY
EXECUTIVE DEFERRED COMPENSATION PLAN
ARTICLE 1. EFFECTIVE DATE AND PURPOSE
1.1 EFFECTIVE DATE. H. J. Heinz Company (the "Company") established the "H. J.
Heinz Company Executive Deferred Compensation Plan" (the "Plan") effective as of
June 8, 1994. The Plan was amended and restated effective as of January 1, 1998.
On September 12, 2000 and January 11, 2001, the Plan was again amended and
restated effective as of those dates. Effective December 27, 2001, the Plan was
again amended and restated as described herein.
1.2 PURPOSE. The Plan is a deferred compensation plan for key employees the
primary purpose of which is to provide certain key employees of the Company, its
subsidiaries and affiliates with deferred cash awards and the opportunity to
voluntarily defer a portion of their compensation, in each case subject to the
terms of the Plan. By adopting the Plan, the Company desires to enhance its
ability to attract and retain employees of outstanding competence.
ARTICLE 2. ADMINISTRATION
2.1 THE COMMITTEE. The Plan shall be administered by the Management Development
& Compensation Committee of the Board of Directors of the Company or any other
successor Committee appointed by the Board (the "Committee"). The members of the
Committee shall be appointed by, and shall serve at the discretion of, the
Board. The Committee shall also have the authority, as it determines in its sole
discretion to be necessary or appropriate, to administer under the provisions of
this Plan, and in a manner consistent with the provisions of such other plans,
any grants and awards made under any other plans of the Company.
2.2 AUTHORITY OF THE COMMITTEE. Except as limited by law or by the Company's
Articles of Incorporation or Bylaws, and subject to the provisions herein, the
Committee shall have authority to select eligible employees of the Company for
participation in the Plan; determine the terms and conditions of each employee's
participation in the Plan; select the recipients of deferred cash awards and
determine the amounts and terms of such awards; interpret the Plan; establish,
amend, or waive rules and regulations for the Plan's administration; determine
which Participants, if any, are eligible to elect to forego deferred
compensation (including applicable accumulated investment gains or losses) under
this Plan in order to participate in the H. J. Heinz Company Executive Estate
Life Insurance Program; and, subject to Article 9 herein, amend the terms and
conditions of the Plan and any agreement entered into under the Plan. Further,
the Committee shall make all other determinations that may be necessary or
advisable for the administration of the Plan. As permitted by law, the Committee
may delegate any of its authority
-1-
<PAGE>
granted under the Plan to such other person or entity it deems appropriate,
including but not limited to, senior management of the Company.
2.3 GUIDELINES. Subject to the provisions herein, the Committee may adopt
written guidelines for the implementation and administration of the Plan.
2.4 DECISIONS BINDING. All determinations and decisions of the Committee arising
under the Plan shall be final, binding, and conclusive upon all parties.
ARTICLE 3. ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY. Subject to Section 3.2, Employees eligible to be selected to
participate in the Plan in any fiscal year of the Company (hereinafter, a
"Year") include full-time, salaried employees of the Company, its subsidiaries
and affiliates who are key employees, as determined by the Committee in its sole
discretion.
3.2 LIMITATION ON ELIGIBILITY. It is the intent of the Company that the Plan
qualify for treatment as a "top hat" plan under the Employee Retirement Income
Security Act of 1974, as amended from time to time, or any successor Act thereto
("ERISA"). Accordingly, to the extent required by ERISA to obtain such "top hat"
treatment, eligibility shall be extended only to those executives who comprise a
select group of management or highly compensated employees. Further, the
Committee may place such additional limitations on eligibility as it deems
necessary and appropriate under the circumstances.
3.3 PARTICIPATION. Participation in the Plan shall be determined annually by the
Committee based upon the criteria set forth in Sections 3.1 and 3.2 herein. An
employee who is chosen to participate in the Plan in any Year (a "Participant")
shall be so notified in writing. In the event a Participant selected to
participate in the Plan on an elective basis no longer meets the criteria for
participation, such Participant shall become an inactive Participant, retaining
all the rights described under the Plan, except the right to make any further
deferrals, until such time that the Participant again becomes an active
Participant.
3.4 PARTIAL YEAR ELIGIBILITY. In the event that an employee first becomes
eligible to participate in the Plan on an elective basis during a Year, within
thirty (30) calendar days of becoming eligible such employee shall be notified
by the Company of his or her eligibility to participate, and the Company shall
provide each such employee with an Election Form, which must be completed by the
employee as provided in Section 4.2 herein.
3.5 NO RIGHT TO PARTICIPATE. No employee shall have the right to be selected as
a Participant, or having been so selected for any given Year, to be selected
again as a Participant for any other Year.
-2-
<PAGE>
ARTICLE 4. ELECTIVE DEFERRALS
4.1 AMOUNT WHICH MAY BE DEFERRED. A Participant may elect to defer, in any Year,
up to one hundred percent (100%) of eligible components of Compensation,
including, but not limited to, Salary, Bonus, Long-Term Awards and Discretionary
Awards, all as defined herein; provided, however, that the Committee shall have
sole discretion to designate which components of Compensation are eligible for
deferral elections under the Plan in any given Year. In addition, the Committee
may, in its sole discretion, designate the minimum amount or increments of any
single eligible component of Compensation which may be deferred in any Year or
establish any other limitations as it deems appropriate in any Year. The
following definitions shall apply for purposes of this Plan:
(a) "Salary" means all regular, basic wages, before reduction for
amounts deferred pursuant to the Plan or any other plan of the Company,
payable in cash to a Participant for services to be rendered, exclusive
of any Bonus, Long-Term Awards, other special fees, awards, or
incentive compensation, allowances, or amounts designated by the
Company as payment toward or reimbursement of expenses.
(b) "Bonus" means any incentive award based on an assessment of
performance, payable by the Company to a Participant with respect to
the Participant's services during a Year, including, but not limited
to, amounts awarded under the Company's Incentive Compensation Plan;
provided, however, that for purposes of the Plan, "Bonus" shall not
include incentive awards which relate to a period exceeding one (1)
Year.
(c) "Long-Term Award" means any cash award payable to a Participant
pursuant to a Company program that establishes incentive award
opportunities that are contingent upon performance that is measured
over periods greater than one (1) Year.
(d) "Discretionary Award" means any cash award payable to a Participant
not described above.
(e) "Compensation" means the gross Salary, Bonus, Long-Term Awards,
Discretionary Awards, and any other payments eligible for deferral
under the Plan, which are payable to a Participant with respect to
services performed.
4.2 TIME OF DEFERRAL ELECTION. An election to defer a component of Compensation
permitted by the Committee to be deferred by a Participant under the Plan shall
be given effect in accordance with the following timing rules:
(a) An election to defer Salary shall apply only to Salary which is
earned for payroll periods beginning after January 1 and July 1 of a
Year and for which a properly executed Election Form (whether an
Election Form for a newly eligible
-3-
<PAGE>
Participant or a new Election Form for additional deferrals by an
existing Participant) has been filed with the Committee, or its
designee.
(b) An election to defer Bonus for any Year shall apply only if a
properly executed Election Form has been filed with the Committee, or
its designee, before the end of the calendar year ending within such
Year.
(c) An election to defer "Long-Term Award" must be made on or before
the end of the Year preceding the final Year of the applicable
multi-year award period.
4.3 CONTENT OF DEFERRAL ELECTION. All deferral elections shall be irrevocable,
and shall be made on an Election Form, as described herein. Participants shall
make the following irrevocable elections on each Election Form:
(a) The amount to be deferred with respect to each eligible component
of Compensation for the Year;
(b) The length of the deferral period with respect to each eligible
component of Compensation, pursuant to the terms of Section 4.4 herein;
and
(c) The form of payment to be made to the Participant at the end of the
deferral period(s), pursuant to the terms of Section 4.5 herein.
Notwithstanding the amounts requested to be deferred pursuant to Subparagraph
(a) above, the limits on deferrals determined under Section 4.1 herein shall
apply to the requested deferrals each Year.
4.4 LENGTH OF DEFERRAL. The deferral periods elected by each Participant with
respect to deferrals of Compensation (and accumulated investment gains and
losses thereon) for any Year shall be at least equal to one (1) year following
the end of the Year in which the Compensation is earned, and shall be no greater
than the date of retirement or other termination of employment, whichever is
earlier. However, notwithstanding the deferral periods elected by a Participant
pursuant to Section 4.3(b) or the form of payment in effect under Section
4.3(c), payment of deferred amounts and accumulated investment gains or losses
thereon may be accelerated, in the sole discretion of the Committee, in the
event the Participant's employment with the Company is terminated by reason of
death or, at the election of the Participant, total disability, as defined in
the Company's Long-Term Disability Plan, at any time prior to full payment of
deferred amounts and accumulated investment gains or losses thereon.
Notwithstanding the foregoing, the Committee, in its sole discretion, is
authorized to provide a Participant with the right to extend the deferral period
originally elected by such Participant to a later date with respect to amounts
which are not otherwise payable prior to one (1) year after the end of the Year
in which any such election to extend the deferral period is made.
-4-
<PAGE>
4.5 PAYMENT OF DEFERRED AMOUNTS. Participants shall be entitled to elect to
receive payment of electively deferred amounts, together with accumulated
investment gains or losses thereon, at the end of the deferral period in a
single lump sum cash payment (or in shares of Company stock in the case of
deferred amounts that are invested in the H. J. Heinz Capital Stock hypothetical
investment account described in Section 6.3(b)), by means of installments, or in
such other format approved by the Committee.
(a) Lump Sum Payment. Such payment shall be made in cash (or in shares
of Company stock in the case of deferred amounts that are invested in
the H. J. Heinz Capital Stock hypothetical investment account described
in Section 6.3(b)), within thirty (30) calendar days of the date
specified by the Participant as the date for payment of deferred
Compensation as described in Section 4.3 and 4.4 hereof, or as soon
thereafter as practicable.
(b) Installment Payments. Participants may elect payout in
installments, with a minimum number of installments of two (2) and a
maximum of fifteen (15). The initial payment shall be made in cash (or
in shares of Company stock in the case of deferred amounts that are
invested in the H. J. Heinz Capital Stock hypothetical investment
account described in Section 6.3(b)) within thirty (30) calendar days
after the commencement date selected by the Participant pursuant to
Sections 4.3 and 4.4 hereof, or as soon thereafter as practicable. The
remaining installment payments shall be made in cash (or in shares of
Company stock in the case of deferred amounts that are invested in the
H. J. Heinz Capital Stock hypothetical investment account described in
Section 6.3(b)) each year thereafter, until the Participant's entire
deferred compensation account has been paid. Investment gains and
losses shall accrue on the deferred amounts in the Participant's
deferred compensation account, as provided in Section 6.2 of this Plan.
The amount of each installment payment shall be equal to the balance
remaining in the Participant's deferred compensation account
immediately prior to each such payment, multiplied by a fraction, the
numerator of which is one (1), and the denominator of which is the
number of installment payments remaining.
(c) Alternative Payment Schedule. A Participant may submit an alternate
payment schedule to the Committee for approval; provided, however, that
no such alternate payment schedule shall be permitted unless approved
by the Committee.
4.6 FINANCIAL HARDSHIP. The Committee shall have the authority to alter the
timing or manner of payment of deferred amounts in the event that the
Participant establishes, to the satisfaction of the Committee, severe financial
hardship. In such event, the Committee may, in its sole discretion:
(a) Authorize the cessation of deferrals by such Participant under the
Plan; or
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<PAGE>
(b) Provide that all or a portion of the amount previously deferred by
the Participant shall immediately be paid in a lump-sum cash (or in
shares of Company stock in the case of deferred amounts that are
invested in the H. J. Heinz Capital Stock hypothetical investment
account described in Section 6.3(b)) payment; or
(c) Provide that all or a portion of the installments payable over a
period of time shall immediately be paid in a lump-sum cash (or in
shares of Company stock in the case of deferred amounts that are
invested in the H. J. Heinz Capital Stock hypothetical investment
account described in Section 6.3(b)) payment; or
(d) Provide for such other installment payment schedule as deemed
appropriate by the Committee under the circumstances.
For purposes of this Section 4.6, "severe financial hardship" shall be
determined by the Committee, in its sole discretion, in accordance with all
applicable laws. The Committee's decision with respect to the severity of
financial hardship and the manner in which, if at all, the Participant's future
deferral opportunities shall be ceased, and/or the manner in which, if at all,
the payment of deferred amounts of the Participant shall be altered or modified
shall be final, conclusive, and not subject to appeal. Investment gains and
losses will be credited in accordance with Article 6 up to the date of
distribution.
ARTICLE 5. NONELECTIVE DEFERRALS
5.1 DEFERRED CASH AWARDS. The Committee may, at its discretion during any Year,
make deferred cash awards on behalf of designated Participants, subject to the
applicable vesting requirements as provided under Section 5.3, in amounts in the
aggregate not to exceed 50% of the total amounts awarded under the Company's
Incentive Compensation Plan during the prior Year.
5.2 DEFERRED PERIOD. The period of time during which each such award shall be
deferred, and the form, manner and timing of payment, shall be as specified by
the Committee at the time of the grant of such deferred cash awards; provided,
however, that the Committee shall have the authority to alter the timing of any
specified payout schedule with respect to vested nonelective deferrals upon the
Participant's establishing, pursuant to the rules and procedures established in
Section 4.6, the existence of financial hardship. At the sole discretion of the
Committee, the deferral period specified at the time of grant of a deferred cash
award may be modified in the event of the acceleration of the vesting of
nonelective deferrals pursuant to Section 5.3 due to the death, disability or
retirement of a Participant. Furthermore, notwithstanding the deferral periods
or form of payment specified by the Committee in its grants of deferred cash
awards, payment of deferred amounts and accumulated investment gains or losses
thereon with respect to vested nonelective deferrals may be accelerated, in the
sole discretion of the Committee, in the event the Participant's employment with
the Company is terminated by reason of
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death or, at the election of the Participant, total disability, as defined in
the Company's Long-Term Disability Plan, at any time prior to full payment of
such deferred amounts and accumulated investment gains or losses thereon.
Notwithstanding the foregoing, the Committee, in its sole discretion, is
authorized to provide a Participant with the right to extend the deferral period
originally specified by the Committee in the award grant to a later date with
respect to amounts that are not otherwise payable prior to one (1) year after
the end of the Year in which any such election to extend the deferral period is
made.
5.3 VESTING REQUIREMENTS. The Committee at the time of granting a deferred cash
award under this Article 5 may, in its sole discretion, impose vesting
requirements with respect to such award pursuant to which all or a portion of
such award may be forfeited under conditions specified by the Committee.
Notwithstanding the imposition of vesting requirements with respect to any
award, the entire amount of such award and any additions thereto pursuant to
Section 6.5 shall become 100% vested and nonforfeitable in the following
circumstances: (a) upon the occurrence of a Change in Control as defined in
Section 5.4; (b) upon the termination of employment of the Participant as a
result of the Participant's death; (c) upon the termination of employment of the
Participant as a result of the Participant's total disability; (d) upon the
termination of employment of the Participant as a result of the Participant's
retirement under any retirement plan of the Company or a Subsidiary (as such
term is defined in Section 5.4(a)) of the Company; or (e) upon the termination
of employment of the Participant that constitutes an involuntary termination of
employment without cause. For purposes of subparagraph (c) above, "total
disability" shall be determined as defined in the Company's Long-Term Disability
Plan, and the determination of the existence of "total disability" shall be made
by the Committee and such determination by the Committee shall be final. For
purposes of subparagraph (d) above, the determination of the existence of
"retirement" shall be made by the Committee and such determination by the
Committee shall be final. For purposes of subparagraph (e) above, "cause" shall
mean an act of dishonesty, moral turpitude or an intentional or grossly
negligent act detrimental to the best interests of the Company or a Subsidiary
(as such term is defined in Section 5.4(a)) of the Company.
5.4 CHANGE IN CONTROL. The term "Change in Control" shall mean any of the
following events:
(a) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by
any "Person" (as the term person is used for purposes of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of
the combined voting power of the Company's then outstanding
Voting Securities; provided, however, that in determining
whether a Change in Control has occurred, Voting Securities
which are acquired in a "Non-Control Acquisition" (as
hereinafter defined) shall not constitute an acquisition that
would cause a Change in Control. A "Non-Control
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<PAGE>
Acquisition" means an acquisition by: (i) an employee benefit
plan (or a trust forming a part thereof) maintained by the
Company or any Subsidiary (as hereinafter defined); (ii) the
Company or any Subsidiary; or (iii) any Person in connection
with a transaction described in paragraph (c) below.
"Subsidiary" means any corporation, partnership, joint venture
or other entity during any period in which at least a fifty
percent (50%) voting or profits interest is owned, directly or
indirectly, by the Company (or by any entity that is a
successor to the Company), and any other business venture
designated by the Committee in which the Company (or any
entity that is a successor to the Company) has a significant
interest, as determined in the discretion of the Committee.
(b) The individuals who, as of the Effective Date (set forth in
Section 1.1), are members of the Board of Directors of the
Company (the "Incumbent Board"), cease for any reason to
constitute at least two-thirds of the Board of Directors;
provided, however, that if the election, or nomination for
election by the Company's shareholders, of any new director
was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Plan, be
considered as a member of the Incumbent Board; provided,
further, however, that no individual shall be considered a
member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened
"Election Consent" (as described in Rule 14a-11 promulgated
under the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a
Person other than the Board of Directors (a "Proxy Contest")
including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest;
(c) A merger, consolidation or reorganization involving the
Company or a Subsidiary, unless
(1) the Voting Securities of the Company, immediately before
such merger, consolidation or reorganization, continue
immediately following such merger, consolidation or
reorganization to represent, either by remaining
outstanding or by being converted into voting securities
of the surviving corporation resulting from such merger,
consolidation or reorganization or its parent (the
"Surviving Corporation"), at least 60% of the combined
voting power of the outstanding voting securities of the
Surviving Corporation;
(2) the individuals who were members of the Incumbent Board
immediately before the execution of the agreement
providing for such merger, consolidation or
reorganization constitute more than one-half of the
members of the board of directors of the Surviving
Corporation; and
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<PAGE>
(3) no person (other than the Company, any Subsidiary, any
employee benefit plan (or any trust forming a part
thereof) maintained by the Company, the Surviving
Corporation or any Subsidiary, or any Person who,
immediately before such merger, consolidation or
reorganization had Beneficial Ownership of 15% or more
of the then outstanding Voting Securities) has
Beneficial Ownership of 15% or more of the combined
voting power of the Surviving Corporation's then
outstanding voting securities.
(d) A complete liquidation or dissolution of the Company;
(e) Approval by stockholders of the Company of an agreement for the
sale or other disposition of all or substantially all of the
assets of the Company to any Person (other than a transfer to a
Subsidiary); or
(f) Any other transaction involving the Company designated as a
"Change in Control" by a majority of the Board of Directors of
the Company.
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired Beneficial Ownership
of more than the permitted amount of the outstanding Voting Securities as a
result of the acquisition of Voting Securities by the Company which, by reducing
the number of Voting Securities outstanding, increases the proportional number
of shares Beneficially Owned by the Subject Person, provided that if a Change in
Control would occur (but for the operation of this sentence) as a result of the
acquisition of Voting Securities by the Company, and after such share
acquisition by the Company the Subject Person becomes the Beneficial Owner of
any additional voting Securities which increases the percentage of the then
outstanding Voting Securities Beneficially Owned by the Subject Person, then a
Change in Control shall occur.
ARTICLE 6. DEFERRED COMPENSATION ACCOUNTS
6.1 PARTICIPANT ACCOUNTS. The Company shall establish and maintain an individual
bookkeeping account ("Participant Account") in the name of each Participant by
or on behalf of whom deferrals have been made under Article 4 or Article 5
hereof. Each Participant Account shall have a subaccount (the "Elective
Account") for elective deferrals under Article 4 which shall be credited with
each amount deferred under Article 4 as of the date that such amount otherwise
would have become due and payable to the Participant. Each Participant Account
established for a Participant on whose behalf an award has been made under
Article 5 shall have a separate subaccount ("Nonelective Account") that shall be
credited with each such award as of the effective date of such award as
determined by the Committee.
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6.2 INVESTMENT GAINS AND LOSSES. The Participant's Elective Account and the
Participant's Nonelective Account shall be credited with investment gains and
losses commencing on the date the Elective Account or the Nonelective Account
first has a positive balance. The investment gains and losses shall be based on
the performance of the hypothetical investments described in Section 6.3 made
available by the Committee from time to time, as selected by the Participant in
accordance with the rules of Section 6.4. The value of the deferred compensation
benefits paid under this Plan shall depend on the investment gains and losses
credited to the Elective Account or the Nonelective Account, based on the
Participant's selections from among the investment alternatives. There shall be
no guaranteed rate of return on the Elective Account or the Nonelective Account
under this Plan. Nothing contained herein shall require the Company to invest
the deferred amounts in any actual investments. Investment gains and losses
credited on deferred amounts shall be paid out to Participants at the same time
and in the same manner as the underlying vested deferred amounts.
6.3 HYPOTHETICAL INVESTMENT CHOICES. The Committee from time to time may make
available any or all of the following hypothetical investments:
(a) Interest-Bearing Cash Account. A Participant's Elective Account (or
Nonelective Account, as the case may be) shall be credited daily with
interest at the rate selected by the Committee and announced to
Participants from time to time.
(b) H. J. Heinz Capital Stock Account. Amounts credited to the
Participant's Elective Account (or Nonelective Account, as the case may
be) shall be restated in the form of "stock units" and adjusted from
time to time in accordance with the following rules:
(1) The number of units initially credited shall be determined
by dividing the dollar amount to be credited to the Account by
a unit value equal to the closing trading price of one share
of the Company's common stock on the day that the Compensation
would have been paid but for the deferral, except that in the
case of a deferral of any "Bonus" or "Long-Term Award" as
defined in Section 4.1(b) and (c) respectively, such day shall
be the day the Committee approves the amount of the award.
(2) The Participant's Elective Account (or Nonelective
Account, as the case may be) will also be credited with
additional units equal to the dollar amount of dividends paid
from time to time during the deferral period on a number of
shares of the Company's common stock equal to the number of
units then credited to the Participant's Elective Account (or
Nonelective Account, as the case may be) divided by a unit
value equal to the closing trading price of one share of the
Company's common stock on the day the dividend is paid.
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(3) In the event of any change in the outstanding shares of
the Company's common stock by reason of any stock dividend or
split, recapitalization, merger, consolidation, spin-off,
reorganization, combination or exchange of shares or other
similar corporate change, then an equitable equivalent
adjustment shall be made in the stock units credited to the
Elective Accounts (or the Nonelective Accounts, as the case
may be) under the Plan.
(4) When payment of a Participant's Elective Account (or
Nonelective Account, as the case may be) occurs, the portion
thereof which is represented by stock units shall be payable,
unless the Committee in its sole discretion permits the
recipient to elect and the recipient so elects payment in cash
or unless necessary to satisfy any withholding obligation as
required by Article 8, by transferring to the Participant or
beneficiary a number of shares of the Company's common stock
equal to the number of whole units then distributable from the
Participant's Elective Account (or the Nonelective Accounts,
as the case may be), with cash in lieu of fractional units.
(c) Phantom Investment Alternatives. Each Phantom Investment
Alternative is a phantom investment opportunity based on a publicly
traded mutual fund or quoted benchmark such as the NASDAQ Combined
Composite Index or the S&P 500 Index. The Committee will name the
investment choices available under the Phantom Investment Alternatives
from time to time. The portion of a Participant's Elective Account (or
the Participant's Nonelective Account as the case may be) allocated to
the Phantom Investment Alternatives will be credited with investment
gains and losses based on the investment performance as periodically
reported by the proxy mutual funds or quoted benchmarks using unit
accounting as if the Participant's deferred amounts had been invested
in those portfolios. The accounting for additions to Phantom Investment
Alternatives or redemptions therefrom shall be similarly based on unit
accounting as of the date of the transaction.
6.4 SELECTION AND REALLOCATION OF HYPOTHETICAL INVESTMENT CHOICES. Investment
choices may be made or changed in accordance with the following rules:
(a) A Participant shall designate on an Election Form the percentage of
each deferred amount which shall be allocated to each available
investment choice. In default of a complete designation, the
Participant's Elective Account or Nonelective Account, as the case may
be (or the undesignated portion thereof) shall be credited with
investment gains and losses in accordance with Section 6.3(a).
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<PAGE>
(b) The Participant may request a change in the allocation of
previously deferred portions of his or her Elective Account (or
Nonelective Account, as the case may be) among the various investment
alternatives, provided, however, that amounts that have been allocated
to the H. J. Heinz Capital Stock Account may not later be transferred
to other investment options. Such changes may be made not more
frequently than once during any calendar month and, to the extent
administratively practical, will become effective as of the first day
of the next calendar month following the Participant's request provided
the request is filed at least 3 business days before the end of the
month. The Participant may also change the allocation that shall apply
to any new elective deferral amounts and deferred cash awards under the
same rules.
6.5 ADDITIONS TO NONELECTIVE ACCOUNTS. The Participant's Nonelective Account,
which is attributable to deferred cash awards described in Section 5.1, shall be
credited with investment gains and losses in the manner specified in Section
6.2, based on the performance of the hypothetical investments described in
Section 6.3 made available by the Committee from time to time, as selected by
the Participant in accordance with the rules of Section 6.4.
6.6 CHARGES AGAINST ACCOUNTS. There shall be charged against each Participant's
deferred compensation account and subaccounts any payments made to the
Participant or to his or her beneficiary, investment losses, and forfeitures of
any unvested amounts at termination of employment.
ARTICLE 7. RIGHTS OF PARTICIPANTS
7.1 CONTRACTUAL OBLIGATION. The Plan shall create a contractual obligation on
the part of the Company to make payments from the Participant Accounts when due
after the expiration of any vesting period. Payment of account balances shall be
made out of the general funds of the Company.
7.2 UNSECURED INTEREST. No Participant or party claiming an interest in amounts
deferred by or on behalf of a Participant, including any investment gains or
losses thereon, shall have any interest whatsoever in any specific asset of the
Company. Any and all investments remain the property of the Company. To the
extent that any party acquires a right to receive payments under the Plan, such
right shall be equivalent to that of an unsecured general creditor of the
Company.
7.3 AUTHORIZATION FOR TRUST. The Company may, but shall not be required to,
establish one or more trusts, with such trustee as the Committee may approve,
for the purpose of providing for the payment of vested deferred amounts. Such
trust or trusts may be irrevocable, but the assets thereof shall be subject to
the claims of the Company's creditors. To the extent any amounts deferred under
the Plan are actually paid from any such trust, the Company shall have no
further obligation with respect thereto, but to the extent not so paid, such
vested deferred amounts shall remain the obligation of, and shall be paid by,
the Company.
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<PAGE>
7.4 EMPLOYMENT. Nothing in the Plan shall interfere with nor limit in any way
the right of the Company to terminate any Participant's employment at any time,
nor confer upon any Participant any right to continue in the employ of the
Company.
ARTICLE 8. WITHHOLDING OF TAXES
All awards under the Plan are subject to withholding of all applicable taxes,
and the Committee may condition the delivery of any cash or stock under the Plan
on the satisfaction of applicable withholding obligations. The Committee, in its
discretion, and subject to such requirements as the Committee may impose prior
to the occurrence of such withholding, may permit such withholding obligations
to be satisfied through cash payment by the Participant, through the surrender
of stock which the Participant already owns, or through the surrender of cash or
stock to which the Participant is otherwise entitled under the Plan.
ARTICLE 9. AMENDMENT AND TERMINATION
The Company hereby reserves the right to amend, modify, or terminate the Plan at
any time by action of the Committee. Except as described below in Section 10.5,
no such amendment or termination shall in any material manner adversely affect
any Participant's rights to amounts previously deferred hereunder, or investment
gains or losses thereon, without the consent of the Participant.
ARTICLE 10. MISCELLANEOUS
10.1 NOTICE. Any notice or filing required or permitted to be given to the
Company under the Plan shall be sufficient if in writing and hand delivered, or
sent by registered or certified mail to either the Vice President - Human
Resources or General Counsel at the principal office of the Company at 600 Grant
Street, Pittsburgh, PA 15219. Notice mailed to a Participant shall be at such
address as is given in the records of the Company. Notices shall be deemed given
as of the date of delivery or, if delivery is made by mail, as of the date shown
on the postmark on the receipt for registration or certification.
10.2 NONTRANSFERABILITY. Participant's rights to deferred amounts,
contributions, and investment gains and losses credited thereon under the Plan
may not be sold, transferred, assigned, or otherwise alienated or hypothecated,
other than by will or by the laws of descent and distribution. In no event shall
the Company make any payment under the Plan to any assignee or creditor of a
Participant.
10.3 SEVERABILITY. In the event any provision of the Plan shall be held illegal
or invalid for any reason, the illegality or invalidity shall not affect the
remaining parts of the Plan,
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and the Plan shall be construed and enforced as if the illegal or invalid
provision had not been included.
10.4 COSTS OF THE PLAN. All costs of implementing and administering the Plan
shall be borne by the Company.
10.5 STATUS UNDER ERISA. The Plan is intended to be an unfunded plan which is
maintained primarily to provide deferred compensation benefits for a select
group of "management or highly compensated employees" within the meaning of
Sections 201, 301, and 401 of ERISA, and to therefore be exempt from the
provisions of Parts 2, 3, and 4 of Title I of ERISA. Accordingly, the Committee
may terminate the Plan and commence termination payout for all or certain
Participants, or remove certain employees as Participants, if it is determined
by the United States Department of Labor or a court of competent jurisdiction
that the Plan constitutes an employee pension plan within the meaning of Section
3(2) of ERISA which is not so exempt. Payout of Elective Accounts shall be made
in the manner selected by each Participant under Section 4.5 herein as
applicable, and payout of vested Nonelective Accounts shall be made as specified
by the Committee.
10.6 APPLICABLE LAW. The Plan shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
10.7 SUCCESSORS. All obligations of the Company under the Plan shall be binding
on any successor to the Company, whether the existence of such successor is the
result of a direct or indirect purchase, merger, consolidation, or otherwise, of
all or substantially all of the business and/or assets of the Company.
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</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.A.15
<SEQUENCE>5
<FILENAME>j9491701exv10waw15.txt
<DESCRIPTION>EXECUTIVE ESTATE LIFE INSURANCE PROGRAM
<TEXT>
<PAGE>
Exhibit 10(a)(xv)
H. J. HEINZ COMPANY
EXECUTIVE ESTATE LIFE INSURANCE PROGRAM
1. PURPOSE
The purpose of the H. J. Heinz Company Executive Estate Life Insurance
Program ("EELIP") is to provide Eligible Executives of H. J. Heinz
Company (the "Company") the opportunity to forego existing deferred
compensation balances under the H. J. Heinz Company Executive Deferred
Compensation Plan (the "Deferred Compensation Plan") in exchange for
the Company's funding of the purchase of a life insurance policy by the
Eligible Executive's family trust.
2. DEFINITIONS
For purposes of the EELIP, the following terms have the meanings set
forth below:
2.01 AGREEMENT TO FOREGO COMPENSATION means the form used by a
Participant to make an election to forego Compensation
pursuant to Section 3.02 of the EELIP and to participate in
the EELIP.
2.02 BOARD OF DIRECTORS means the Board of Directors of the
Company.
2.03 CHANGE OF CONTROL means a change of control of the Company, as
such term is defined in Section 1(b) of the H. J. Heinz
Company 2000 Stock Option Plan, as amended from time to time.
2.04 COMMITTEE means the Management Development & Compensation
Committee of the Board of Directors of H. J. Heinz Company.
2.05 COMPANY means H. J. Heinz Company and any of its subsidiaries
and affiliates.
2.06 COMPENSATION means amounts a Participant agrees to forego to
participate in the EELIP pursuant to Section 3, and shall
include existing deferred compensation balances under the H.
J. Heinz Company Executive Deferred Compensation Plan.
2.07 EELIP ADMINISTRATOR means the Committee, or its designee.
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2.08 EFFECTIVE DATE means December 27, 2001.
2.09 ELIGIBLE EXECUTIVE means any executive of the Company
designated in writing by the Committee to be an Eligible
Executive, and therefore eligible to participate in the EELIP.
2.10 INSURER means, with respect to a Participant's Policy, the
insurance company issuing the Policy on the Participant's life
(or on the lives of the Participant and the Participant's
spouse, in the case of a Survivorship Policy) pursuant to the
provisions of the Promissory Note and the EELIP.
2.11 PARTICIPANT means an Eligible Executive who elects to
participate in the EELIP.
2.12 POLICY means the life insurance coverage acquired on the life
of the Participant (or on the lives of the Participant and the
Participant's spouse, in the case of a Survivorship Policy)
pursuant to the EELIP.
2.13 PROMISSORY NOTE means the document executed by the Company and
the Participant's trust as provided in Section 4.
2.14 SURVIVORSHIP POLICY means a Policy insuring the lives of the
Participant and a Participant's spouse, with the death benefit
payable at the death of the last survivor of the Participant
and his or her spouse.
3. PARTICIPATION
3.01 ELIGIBILITY. Any Eligible Executive shall be eligible to
participate in the EELIP. An Eligible Executive shall become a
Participant by completing such forms, documents and procedures
as specified by the EELIP Administrator. The Participant (and,
in the case of a Survivorship Policy, the Participant's
spouse) shall cooperate with the Insurer by furnishing any and
all information requested by the Insurer in order to
facilitate the issuance of the Policy, including furnishing
such medical information and taking such physical examinations
as the Insurer may deem necessary. In the absence of such
cooperation, the Company shall have no further obligation to
the Participant to allow him or her to participate in the
EELIP.
3.02 ELECTION TO FOREGO COMPENSATION. As a condition of
participating in the EELIP, each Participant shall be required
to make an election in which
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the Participant shall commit to forego the receipt of a
specified amount of Compensation. The Participant shall make
an election to forego Compensation by execution of an
Agreement to Forego Compensation prior to the Policy effective
date. The amounts that a Participant agrees to forego pursuant
to such election, unless precluded by tax or other laws to the
contrary, shall be included in determining a Participant's
compensation for purposes of any benefit plans maintained by
the Company to the same extent as if such Compensation had
been paid to the Eligible Executive at the time the Eligible
Executive agrees to forego such Compensation and shall be
valued as of the date the Agreement to Forego Compensation is
completed by the Eligible Executive and submitted to the
Company; provided, however, that any such amounts which are
not fully vested at the time the Eligible Executive agrees to
forego such Compensation shall be so included at the time they
become fully vested and shall be valued in such case as of the
date the Agreement to Forego Compensation is completed by the
Eligible Executive and submitted to the Company.
An Eligible Executive's election to participate in the EELIP
shall be irrevocable when the Eligible Executive completes an
Agreement to Forego Compensation and submits it to the
Company.
4. GENERAL DESCRIPTION
The Company shall fund a trust created by the Participant, in an amount
equal to approximately one hundred and fifty percent (150%), or such
other amount as determined by the Committee in its sole discretion, of
the value of the Compensation foregone by a Participant as provided in
the Agreement to Forego Compensation. The terms of the funding shall be
documented by a Promissory Note to be executed by the Company and the
trust. The Promissory Note will provide as follows:
a. The interest rate shall be the long term Applicable Federal
Rate ("AFR") required pursuant to the Internal Revenue Code in
effect at the time of funding to avoid below market treatment
under section 7872 of the Internal Revenue Code, or such other
rate as determined by the EELIP Administrator.
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<PAGE>
b. The proceeds must be used to pay a premium on a life insurance
policy on the life of the Participant (or a Survivorship
policy on the life of the Participant and the Participant's
spouse) and no part of the proceeds shall be used for any
other purpose.
c. The Promissory Note is due and payable within 90 days
following the death of the insured(s) under the policy.
d. The Policy will be owned solely by the trust created by the
Participant and the trust must be designated as beneficiary to
receive the Policy death benefit or any benefit paid at Policy
maturity, and no person or entity will have any interest in
the Policy.
e. The entire principal sum and accrued interest under the
Promissory Note shall become immediately due and payable if:
(i) the trust fails to pay the Policy premium within the time
allowed under the Promissory Note; (ii) the trust attempts to
transfer all or any part of its interest in the Policy to any
party other than a successor trustee; (iii) the trust
surrenders the Policy in whole or in part, or borrows from,
withdraws cash value from, or otherwise pledges or encumbers
the Policy; (iv) the trust reduces the face amount of the
Policy without the consent of the Company, but only if the
face amount reduction results in a distribution of Policy cash
values; or (v) the Participant terminates employment with the
Company before any applicable vesting date, unless: (A) such
termination of employment occurs as a result of the
Participant's death; (B) such termination of employment occurs
as a result of the Participant's total disability; (C) such
termination of employment occurs as a result of or following a
Change of Control; (D) such termination of employment occurs
as a result of the Participant's retirement under any
retirement plan of the Company or a subsidiary (as such term
is defined in Section 5.4(a) of the H. J. Heinz Company
Executive Deferred Compensation Plan, as amended from time to
time) of the Company; or (E) such termination of employment
constitutes an involuntary termination of employment without
cause. For purposes of subparagraph (B) above, "total
disability" shall be determined as defined in the Company's
Long-Term Disability Plan, and the determination of the
existence of "total disability" shall be made by the
Committee, and such determination by the Committee shall be
final. For purposes of subparagraph (D) above, the
determination of the existence
-4-
<PAGE>
of "retirement" shall be made by the Committee and such
determination by the Committee shall be final. For purposes of
subparagraph (E) above, "cause" shall mean an act of
dishonesty, moral turpitude or an intentional or grossly
negligent act detrimental to the best interests of the Company
or a subsidiary (as such term is defined in Section 5.4(a) of
the H. J. Heinz Company Executive Deferred Compensation Plan,
as amended from time to time) of the Company.
f. Such other provisions as shall be determined by the EELIP
Administrator.
5. EELIP ADMINISTRATION, AMENDMENT AND TERMINATION
5.01 EELIP ADMINISTRATION. The EELIP shall be administered by the
EELIP Administrator or its designee. The EELIP Administrator
shall have the full and exclusive authority to interpret,
administer and modify the EELIP (including fact-based
determinations), to construe ambiguities and to decide all
matters under the EELIP in its sole discretion. Such
interpretation and decision by the EELIP Administrator (or its
designee) with respect to any question arising out of or in
connection with the administration, interpretation and
application of the EELIP shall be final, conclusive and
binding on all Participants and any person claiming under or
through any Participant. The EELIP Administrator shall have
full discretionary authority to make any and all rules,
regulations and determinations, whether or not specifically
authorized herein, as it deems necessary or appropriate to
carry out its responsibilities under the EELIP as well as the
purposes for which it was established. In the administration
of the EELIP, the EELIP Administrator from time to time may
employ agents and delegate to them or to others (including
Eligible Executives) such administrative duties as it sees
fit. The EELIP Administrator from time to time may consult
with counsel, who may be counsel to the Company. The Company
shall indemnify and hold harmless the EELIP Administrator and
any Eligible Executives to whom administrative duties under
the EELIP are delegated, against any and all claims, loss,
damage, expense or liability arising from any action or
failure to act with respect to the EELIP, except in the case
of gross negligence or willful misconduct by the EELIP
Administrator.
5.02 EELIP AMENDMENT AND TERMINATION. The Committee may amend,
modify or terminate the EELIP at any time, but any such
amendment,
-5-
<PAGE>
modification or termination will not affect the rights of any
Participant, under any Agreement to Forego Compensation or
Promissory Note entered into with the Company prior to the
date of such amendment, modification or termination without
the Participant's written consent.
5.03 SUCCESSORS. The terms and conditions of the EELIP shall inure
to the benefit of and bind the Company, the Participant and
the trust, as well as their successors, assignees and
representatives. The Company shall have the right to
absolutely and irrevocably assign its rights, title and
interest in a Promissory Note without the consent of the
Participant or trust (or permissible assignee).
6. CLAIMS PROCEDURE
The EELIP Administrator shall establish a claims procedure
that is designed to provide adequate notice in writing to any
Participant or beneficiary whose claim for benefits under the
EELIP has been denied, setting forth the specific reasons for
such denial and written in a manner calculated to be
understood by the Participant, and such procedure shall afford
a reasonable opportunity to any Participant whose claim for
benefits has been denied to have a full and fair review of the
decision denying the claim.
7. GOVERNING LAWS AND NOTICES
7.01 GOVERNING LAW. The EELIP shall be governed by and construed in
accordance with the substantive law of the Commonwealth of
Pennsylvania, without giving effect to the choice of law rules
of the Commonwealth of Pennsylvania.
7.02 NOTICES. All notices hereunder shall be in writing and sent by
first class mail with postage prepaid. Any notice to the
Company shall be addressed to the attention of either the Vice
President - Human Resources or General Counsel at the
principal office of the Company at 600 Grant Street,
Pittsburgh, PA 15219. Any notice to the Participant shall be
addressed to the Participant at the last known address on file
with the Company. Any party may change its address by giving
written notice of such change to the other party pursuant to
this Section.
-6-
<PAGE>
8. MISCELLANEOUS PROVISIONS
8.01 NO CONTRACT OF EMPLOYMENT. This EELIP, and any Agreement to
Forego Compensation or Promissory Note executed hereunder,
shall not be deemed to constitute a contract of employment
between an Eligible Executive and the Company, or a
Participant and the Company, nor shall any provision restrict
the right of the Company to discharge an Eligible Executive or
Participant, or restrict the right of an Eligible Executive or
Participant to terminate employment with the Company.
8.02 GENDER. The masculine pronoun includes the feminine and the
singular includes the plural where appropriate for valid
construction.
8.03 COOPERATION WITH INSURER. In order to be eligible to
participate in the EELIP, the Participant (and, in the case of
a Survivorship Policy, the Participant's spouse) shall
cooperate with the Insurer by furnishing any and all
information requested by the Insurer in order to facilitate
the issuance of the policy, including furnishing such medical
information and taking such physical examinations as the
Insurer may deem necessary. In the absence of such
cooperation, the Company shall have no further obligation to
the Participant to allow him or her to participate in the
EELIP.
8.04 INCONSISTENT TERMS. In the event of any inconsistency between
the terms of the EELIP as described herein and the terms of
any Policy purchased hereunder or any related Agreement to
Forego Compensation or Promissory Note, the terms of such
Policy or Agreement to Forego Compensation or Promissory Note
shall be controlling as to that Participant or his or her
trust.
-7-
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.A.16
<SEQUENCE>6
<FILENAME>j9491701exv10waw16.txt
<DESCRIPTION>RESTRICTED STOCK RECOGNITION PLAN (SALARIED)
<TEXT>
<PAGE>
Exhibit 10(a)(xvi)
H. J. HEINZ COMPANY
RESTRICTED STOCK RECOGNITION PLAN
FOR SALARIED EMPLOYEES *
1. NAME
----
H. J. Heinz Company Restricted Stock Recognition Plan for Salaried
Employees.
2. PURPOSES
--------
The purpose of the Plan is to give the Company an additional way to
provide recognition and reward to employees who have a history of
outstanding accomplishment and who, because of their experience and
skills, are expected to continue to contribute significantly to the
success of the Company.
3. DEFINITIONS
-----------
The terms defined in this Section 3 shall, for all purposes of this Plan,
have the meanings herein specified:
"Board of Directors" shall mean, the Board of Directors of H. J. Heinz
Company or the Executive Committee of the Board.
"Chief Executive Officer" shall mean the Chief Executive Officer of H.
J. Heinz Company.
"Common Stock" shall mean the authorized Common Stock of H. J. Heinz
Company.
"Company" shall mean H. J. Heinz Company including any division,
subsidiary or affiliated company or any division, subsidiary or affiliated
company of any such subsidiary or affiliated company that shall be
authorized to participate in the Plan by the Chief Executive Officer.
"Employee" or "Employees" shall mean a full-time salaried employee who is
not participating in the Company's Management Incentive Plan or who has
not been awarded an option to purchase the Company's Common Stock and who
resides in a country where such an award is not prohibited.
"Plan" shall mean the H. J. Heinz Company Restricted Stock Recognition
Plan for Salaried Employees.
"Plan Year" shall mean the twelve-month period beginning each May 1 and
ending each April 30.
- ----------
* as amended through July 13, 1988
<PAGE>
4. EFFECTIVE DATE AND TERMINATION
------------------------------
The effective date of the Plan is May 1, 1987. Thereafter, the Plan will
continue indefinitely until and unless terminated by the Board of
Directors.
5. ADMINISTRATION
--------------
The Plan shall be administered by the Chief Executive Officer of the H.
J. Heinz Company. The criteria for decisions as to the Employees to
whom stock shall be awarded under the Plan shall be determined from
time to time by the Chief Executive Officer.
6. ELIGIBILITY
-----------
Subject to the provisions of the Plan, the Chief Executive Officer upon
the recommendation of the president or managing director of the
participating Company with the concurrence of the appropriate Senior Vice
President of the Company, shall determine from time to time those
Employees of the Company to whom Common Stock is to be awarded and the
number of shares of Common Stock to be awarded to any individual. In
recommending the eligibility of an Employee to receive an award, as well
as the number of shares to be awarded to any Employee, each president or
managing director of a participating Company shall consider the position
and responsibilities of the Employee being considered, the nature and
value to the Company of his services and accomplishments, his present and
potential contribution to the success of the Company and such other
factors as the Chief Executive Officer may deem relevant. The decision of
the Chief Executive Officer with respect to such awards shall be final and
binding upon all persons.
7. NUMBER OF SHARES TO BE AWARDED UNDER PLAN IN EACH PLAN YEAR
-----------------------------------------------------------
The maximum number of shares of Common Stock that the Chief Executive
Officer may grant under the Plan in each Plan Year, subject to adjustment
in accordance with Section 11, will be established annually by the
Executive Committee of the Board of Directors; provided, however, that
such number of shares shall not exceed in any Plan Year 1% of all then
outstanding shares of Common Stock. The Common Stock to be offered under
the Plan may be either authorized and unissued shares or issued shares
reacquired by the Company and presently or hereafter held as treasury
shares.
Normally, no more than 100 shares may be awarded to any individual in any
Plan Year but exceptions may be made by the Chief Executive Officer in
special circumstances. The Chief Executive Officer is under no obligation
to make any awards, or, if awards are made, to award the maximum amount
permitted under the Plan each Plan Year.
2
<PAGE>
8. AWARDS
------
Awards shall be made in the form of the issuance of shares in the name of
the recipient (or at the recipient's request, in the name of the recipient
and the recipient's spouse in joint tenancy), without the recipient being
obligated to make any payment to the Company other than as necessary to
satisfy the Company-withholding tax obligations, if any.
Certificates for such shares shall be delivered to the recipient only if
the shares are issued without the restrictions referred to in Section 9
hereof or upon the lapse of such restrictions. All shares issued pursuant
to the Plan shall bear an appropriate legend referring to such
restrictions and to this Plan.
9. RESTRICTIONS
------------
Until 36 months after the date of grant of the shares, such shares shall
be non-transferable and shall be forfeited to the Company in the event of
the termination of the employment of the recipient of such shares during
such period for any reason (including, but not limited to, discharge)
other than death, permanent and total disability (as determined under the
standards of the Employees' Retirement System of H. J. Heinz Company as
then in effect), or retirement at or after the recipient's Normal
Retirement Date (as determined under the standards of the Employees'
Retirement System of H. J. Heinz Company as then in effect); provided that
such forfeiture may be waived by a statement in writing referring to this
Plan and specifically agreeing to such a waiver, signed on behalf of the
H. J. Heinz Company by its Chief Executive Officer. During the period of
restriction as to transferability and/or provision as to forfeitability,
Employees who were awarded shares shall receive dividends and have voting
and other shareholders' rights as to such shares.
10. INTERPRETATION, AMENDMENTS AND TERMINATION
------------------------------------------
The Chief Executive Officer may establish such rules, regulations and
procedures for the administration of the Plan, as he deems appropriate. In
the event of any dispute or disagreement as to the interpretation of the
Plan or of any rule, regulation or procedure, or as to any question, right
or obligation arising from or related to the Plan, the decision of the
Chief Executive Officer shall be final and binding upon all persons.
The Board of Directors may amend the Plan, as it shall deem advisable. The
Board of Directors may, in its discretion, terminate the Plan at any time.
Termination of the Plan shall not affect the rights of Employees who have
been granted awards but who have not yet received their Common Stock
certificates.
3
<PAGE>
11. ADJUSTMENTS
-----------
The maximum number of shares that may be awarded under the Plan in any
Plan Year to any individual, and in the aggregate, shall be appropriately
adjusted to take account of any stock dividend, stock split,
recapitalization or similar event.
12. NOTICES
-------
All notices under the Plan shall be in writing, and if to the Company,
shall be delivered to the Secretary of the Company or mailed to its
principal office, 60th Floor, 600 Grant Street, Pittsburgh, Pennsylvania
15219, addressed to the attention of the Secretary; and if to the Employee
receiving an award of Common Stock, shall be delivered personally or
mailed to such Employee at the address appearing in the payroll records of
the Company. Such addresses may be changed at any time by written notice
to the other party.
13. MISCELLANEOUS PROVISIONS
------------------------
a. The Plan shall be governed by, and construed in accordance with,
the local laws of the Commonwealth of Pennsylvania.
b. The Plan is not intended to qualify as an exempt plan under Section
401(a) of the Internal Revenue Code of 1954, as amended.
c. Neither the Plan nor any action there under shall be construed to
give any Employee the right to be retained in the service of the
Company or to interfere with the right of the Company to discharge
such Employee at any time.
d. The expenses of administering the Plan shall be borne by the
Company.
4
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.A.17
<SEQUENCE>7
<FILENAME>j9491701exv10waw17.txt
<DESCRIPTION>RETIREMENT AGREEMENT FOR MR. WILLIAMS
<TEXT>
<PAGE>
Exhibit 10(a)(xvii)
June 7, 2002
David R. Williams
Cherry Hill
Scaife Road
Sewickley, PA 15143
Dear Dave:
This Letter Agreement confirms our understanding regarding your retirement from
active service.
1. You will retire from H. J. Heinz Co. (the "Company") on August 31, 2002
(Retirement Date).
2. The Company agrees that:
a. You will remain on the active payroll of the Company and your
full salary will be paid at the rate of $41,666.67 per month,
less appropriate payroll deductions, until the Retirement
Date.
b. You will remain available to provide consulting services to
the company at a rate of $78,050 per month until December 31,
2002.
c. The lump sum payment, and other considerations outlined below
will be in lieu of any other `special' retirement programs
(e.g., MVP, Excel, Streamline) that have been offered from
time to time, or any severance benefits paid by the Company in
its regular practice.
d. You will be given a lump sum payment of $2,512,314 less
appropriate payroll deductions, on your Retirement Date.
e. Unused vacation days will be paid in cash on your Retirement
Date.
f. You will receive a pro-rata SSP payment for fiscal year 2003,
calculated in accordance with the terms of the plan. This
amount shall be paid at the time SSP payments are made to all
other SSP participants. This agreement shall be operative only
in the event the Company makes payments to other World
Headquarters executives under the SSP plan for fiscal year
2003.
<PAGE>
Page 2
g. Your pension (Plan `A') can, at your option, be paid as a lump
sum (present value of the annuity), or you may begin receiving
monthly annuity payments that will commence on or about 30
days following your Retirement Date.
h. You can obtain detailed information about your Retirement and
Savings Plan account balance at any time through the Heinz
Benefit Center by visiting www.galleryofbenefits.com/heinz, or
by calling 1-800-571-5710,
i On your Retirement Date the Supplemental Executive Retirement
Plan (SERP) will pay a lump sum benefit equal to the
difference between 5.0 times your final average annual
compensation and the lump sum benefit available from the
Company's qualified retirement plans.
j. Your stock options may be retained and may be exercised in
accordance with the original terms of the option grants at any
time after the restriction periods have been satisfied and
before the option term has expired. With respect to any stock
options which are unvested on your Retirement Date, the
preceding sentence means that such options will continue in
accordance with the terms of the respective grants and will
become exercisable at the vesting date for such options and
will remain exercisable at any time prior to the expiration
date of such options.
k. You may take title to your company-provided automobile, as
well as your company-provided portable computers.
l. Financial counseling will remain available through calendar
year 2003. This provision includes any tax planning work
completed during 2003, but will not include preparation and
filing of 2003 taxes due in April 2004, or other services
provided after December 31, 2003. In addition, the Tax
Equalization Policy related to your service in U.K will cover
you for the calendar year 2002 dual filing year, as well as
any subsequent year you receive any assignment related tax or
relocation reimbursements.
m. Your club dues will be paid through December 31, 2002. You
will also receive all other employee benefits and perquisites
normally given to retired executives of the Company of similar
rank.
3. The Company will continue your health coverage as an active employee
under its group benefit plans currently in effect through the end of
the month in which you retire. You and your eligible dependents will
receive post retirement medical coverage at company expense until you
reach age 65; after you reach age 65, you will continue to receive
prescription coverage at no cost and your eligible
<PAGE>
Page 3
dependents will continue to be eligible for medical plus
prescription coverage at 50% of the cost per person covered.
4. Within 30 days of your Retirement Date, you should prepare and submit
travel and entertainment expense reports through your last day of work,
and reimburse the Company for any advances in excess of approved
expenses. Any reimbursement due to you will be paid promptly.
5. a. You understand and agree that in the course of your employment,
you have acquired confidential information and trade secrets
concerning the operations of the Company, the Company's
subsidiaries and affiliates (collectively, the "Companies"), and
the Companies' future plans and methods of doing business,
including, without limitation, strategic plans and business
plans, which information you understand could be extremely
damaging to the Companies if disclosed to a competitor or made
available to any other person or corporation. You understand and
agree that such information has been divulged to you in
confidence and you understand and agree that you will keep such
information secret and confidential.
b. You further agree that during your employment by the Company and
for a period of two (2) years following your Retirement Date,
you will not, in any manner, directly or indirectly, induce,
solicit, or encourage any person who is then employed by any of
the Companies or who was so employed at any time during the
six-month period preceding your Retirement Date to terminate
employment with any of the Companies or to apply for or accept
employment with any competitor of the Companies.
c. You further agree that during your employment by the Company and
for a period of two (2) years following your Retirement Date,
you will not, without the express written consent of the
Company, perform services (whether as an employee, consultant or
otherwise) for Campbell Soup Company, ConAgra Foods, Nestle
S.A., or Unilever PLC/Unilever NV, or any subsidiary or
affiliate thereof as these terms are defined in SEC Regulation
SX, 17 CFR Section 210.1-02.
d. In view of the nature of your employment and the information and
trade secrets which you have received during the course of your
employment, you likewise agree that the Companies would be
irreparably harmed by any violation, or threatened violation of
the Agreement and that, therefore, the Companies shall be
entitled to an injunction prohibiting you from any violation or
threatened violation of the Agreement. The undertakings set
forth in this paragraph shall survive the termination of other
arrangements contained in this Agreement.
<PAGE>
Page 4
6. In consideration for the payments and benefits provided to you through
this Agreement to which you are otherwise not entitled, you hereby
irrevocably and unconditionally release and forever discharge the
Company, its successors, assigns, agents, directors, officers,
employees, shareholders, representatives, attorneys, divisions,
subsidiaries, and affiliates (referred to collectively as "Released
Persons"), from and against any and all claims, liabilities, promises,
agreements, or obligations, other than those relating to officer's and
director's liability coverage as covered by the Company's bylaws,
(referred to collectively as "Claims") which you now have, or ever had,
against each or any of the Released Persons, by reason of any and all
acts, failures to act, events, or facts existing or occurring up to the
time of final execution of this Agreement. The Claims released by you
against any Released Persons shall include, but not be limited to, any
Claims arising from, related to, or in connection with (1) any express
or implied contract, promise or covenant of good faith and fair
dealing, whether or not in writing, (2) any "tort" or other claims for
bodily or other injury, (3) any legal or other restriction on the right
of Company to terminate the employment of any employee, and (4) any
rights, remedies or claims under any federal, state or other government
law, regulation or rule, including without limitation, Title VII of the
Civil Rights Act of 1964, as amended, and the Age Discrimination in
Employment Act, as amended, including, without limitation, amendments
contained in the Older Workers Benefit Protection Act. This release
shall not include any Claims relating to, or arising from the breach of
this Agreement.
7. You have twenty-one (21) days to consider execution of this agreement.
The agreement shall not be effective unless and until you execute and
return one of the two originals hereof executed by the Company. After
twenty-one (21) days, we may revoke the offers contained in this letter
agreement and any or all of the terms hereof by a writing delivered to
you any time prior to the time you execute and deliver this Agreement.
8. You acknowledge that you have carefully reviewed and understand this
agreement. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING
THIS AGREEMENT. Your signature will indicate that you accept and agree
to its terms voluntarily and with full understanding of its
consequences. For a period of seven (7) days following your final
execution of the Agreement, you will have the right to revoke this
Agreement, and this Agreement shall not become effective or enforceable
until the revocation period has expired.
<PAGE>
Page 5
Your signature on this letter agreement, and the Company's, signify the
intention of the parties to be legally bound by the terms of this letter
agreement. If the above agreement is satisfactory to you, please sign and return
one of the originals of this letter to me. The second original is for your
records.
Very truly yours,
H. J. Heinz Company
WILLIAM R. JOHNSON
Chairman, President and Chief Executive Officer
Accepted and agreed to this
12th day of June, 2002 Witness: ____________________
/s/ David R. Williams
__________________________ Date: ____________________
David R. Williams
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.A.18
<SEQUENCE>8
<FILENAME>j9491701exv10waw18.txt
<DESCRIPTION>RETIREMENT AGREEMENT MR. WAMHOFF
<TEXT>
<PAGE>
Exhibit 10(a)(xviii)
July 24, 2002
Richard H. Wamhoff
225 Virginia Avenue
Pittsburgh, PA 15215
Dear Dick:
This Letter Agreement confirms our understanding regarding your retirement from
active service.
1. You will retire from H. J. Heinz Co. (the "Company") on August 31, 2002
(Retirement Date).
2. The Company agrees that:
a. You will remain on the active payroll of the Company and your
full salary will be paid, less appropriate payroll deductions,
until the Retirement Date.
b. The lump sum payment, and other considerations outlined below
will be in lieu of any other `special' retirement programs
(e.g., MVP, Excel, Streamline) that have been offered from
time to time, or any severance benefits paid by the Company in
its regular practice.
c. You will be given a lump sum payment of $1,380,600, less
appropriate payroll deductions, on your Retirement Date.
d. Unused vacation days will be paid in cash on your Retirement
Date.
e. You will receive a pro-rata SSP payment for fiscal year 2003,
calculated in accordance with the terms of the plan. This
amount shall be paid at the time SSP payments are made to all
other SSP participants. This agreement shall be operative only
in the event the Company makes payments to other World
Headquarters executives under the SSP plan for fiscal year
2003.
<PAGE>
Page 2
f. Your pension (Plan `A') can, at your option, be paid as a lump
sum (present value of the annuity), or you may begin receiving
monthly annuity payments that will commence on or about 30 days
following your Retirement Date.
g. You can obtain detailed information about your Retirement and
Savings Plan account balance at any time through the Heinz
Benefit Center by visiting www.galleryofbenefits.com/heinz, or
by calling 1-800-571-5710,
h. On your Retirement Date the Supplemental Executive Retirement
Plan (SERP) will pay a lump sum benefit equal to the difference
between 5.0 times your final average annual compensation and the
lump sum benefit available from the Company's qualified
retirement plans.
i. Your stock options may be retained and may be exercised in
accordance with the original terms of the option grants at any
time after the restriction periods have been satisfied and
before the option term has expired. With respect to any stock
options which are unvested on your Retirement Date, the
preceding sentence means that such options will continue in
accordance with the terms of the respective grants and will
become exercisable at the vesting date for such options and will
remain exercisable at any time prior to the expiration date of
such options.
j. You may take title to your company-provided automobile, as well
as your company-provided portable computers.
k. Financial counseling will remain available through calendar year
2003. This provision includes any tax planning work completed
during 2003, but will not include preparation and filing of 2003
taxes due in April 2004, or other services provided after
December 31, 2003. In addition, the Tax Equalization Policy
related to your service in Asia will cover you for the calendar
year 2002 filing year, as well as any subsequent year you
receive any assignment related tax or relocation reimbursements.
l. Your club dues will be paid through December 31, 2002. You will
also receive all other employee benefits and perquisites
normally given to retired executives of the Company of similar
rank.
3. The Company will continue your health coverage as an active employee
under its group benefit plans currently in effect through the end of
the month in which you retire. You and your eligible dependents will
receive post retirement medical coverage at company expense until you
reach age 65; after you reach age 65, you will continue to receive
prescription coverage at no cost and your eligible dependents will
continue to be eligible for medical plus prescription coverage at
<PAGE>
Page 3
50% of the cost per person covered.
4. Within 30 days of your Retirement Date, you should prepare and submit
travel and entertainment expense reports through your last day of work,
and reimburse the Company for any advances in excess of approved
expenses. Any reimbursement due to you will be paid promptly.
5. a. You understand and agree that in the course of your
employment, you have acquired confidential information and
trade secrets concerning the operations of the Company, the
Company's subsidiaries and affiliates (collectively, the
"Companies"), and the Companies' future plans and methods of
doing business, including, without limitation, strategic plans
and business plans, which information you understand could be
extremely damaging to the Companies if disclosed to a
competitor or made available to any other person or
corporation. You understand and agree that such information
has been divulged to you in confidence and you understand and
agree that you will keep such information secret and
confidential.
b. You further agree that during your employment by the Company
and for a period of two (2) years following your Retirement
Date, you will not, in any manner, directly or indirectly,
induce, solicit, or encourage any person who is then employed
by any of the Companies or who was so employed at any time
during the six-month period preceding your Retirement Date to
terminate employment with any of the Companies or to apply for
or accept employment with any competitor of the Companies.
c. You further agree not to accept employment with or provide
consulting services to competitors of the Companies throughout
the world for a period of one year from your retirement date.
d. In view of the nature of your employment and the information
and trade secrets which you have received during the course of
your employment, you likewise agree that the Companies would
be irreparably harmed by any violation, or threatened
violation of the Agreement and that, therefore, the Companies
shall be entitled to an injunction prohibiting you from any
violation or threatened violation of the Agreement. The
undertakings set forth in this paragraph shall survive the
termination of other arrangements contained in this Agreement.
<PAGE>
Page 4
6. In consideration for the payments and benefits provided to you through
this Agreement to which you are otherwise not entitled, you hereby
irrevocably and unconditionally release and forever discharge the
Company, its successors, assigns, agents, directors, officers,
employees, shareholders, representatives, attorneys, divisions,
subsidiaries, and affiliates (referred to collectively as "Released
Persons"), from and against any and all claims, liabilities, promises,
agreements, or obligations, other than those relating to officer's and
director's liability coverage as covered by the Company's bylaws,
(referred to collectively as "Claims") which you now have, or ever had,
against each or any of the Released Persons, by reason of any and all
acts, failures to act, events, or facts existing or occurring up to the
time of final execution of this Agreement. The Claims released by you
against any Released Persons shall include, but not be limited to, any
Claims arising from, related to, or in connection with (1) any express
or implied contract, promise or covenant of good faith and fair
dealing, whether or not in writing, (2) any "tort" or other claims for
bodily or other injury, (3) any legal or other restriction on the right
of Company to terminate the employment of any employee, and (4) any
rights, remedies or claims under any federal, state or other government
law, regulation or rule, including without limitation, Title VII of the
Civil Rights Act of 1964, as amended, and the Age Discrimination in
Employment Act, as amended, including, without limitation, amendments
contained in the Older Workers Benefit Protection Act. This release
shall not include any Claims relating to, or arising from the breach of
this Agreement.
7. You have twenty-one (21) days to consider execution of this agreement.
The agreement shall not be effective unless and until you execute and
return one of the two originals hereof executed by the Company. After
twenty-one (21) days, we may revoke the offers contained in this letter
agreement and any or all of the terms hereof by a writing delivered to
you any time prior to the time you execute and deliver this Agreement.
8. You acknowledge that you have carefully reviewed and understand this
agreement. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING
THIS AGREEMENT. Your signature will indicate that you accept and agree
to its terms voluntarily and with full understanding of its
consequences. For a period of seven (7) days following your final
execution of the Agreement, you will have the right to revoke this
Agreement, and this Agreement shall not become effective or enforceable
until the revocation period has expired. This agreement supersedes and
replaces any and all prior agreements with respect to the subject
matter hereto.
<PAGE>
Page 5
Your signature on this letter agreement, and the Company's, signify the
intention of the parties to be legally bound by the terms of this letter
agreement. If the above agreement is satisfactory to you, please sign and return
one of the originals of this letter to me. The second original is for your
records.
Very truly yours,
H. J. Heinz Company
WILLIAM R. JOHNSON
Chairman, President and Chief Executive Officer
Accepted and agreed to this
26th day of July, 2002 Witness: ____________________
/s/ Richard H. Wamhoff
__________________________ Date: ____________________
Richard H. Wamhoff
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-12
<SEQUENCE>9
<FILENAME>j9491701exv12.txt
<DESCRIPTION>RATIO OF EARNINGS TO FIXED CHARGES
<TEXT>
<PAGE>
EXHIBIT 12
H. J. HEINZ COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
<Table>
<Caption>
Fiscal Years Ended
--------------------------------------------------------------
May 1, May 2, May 3, April 28, April 29,
2002 2001 2000 1999 1998
(52 Weeks) (52 Weeks) (53 Weeks) (52 Weeks) (52 Weeks)
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Fixed Charges:
Interest expense*........... $ 297,315 $ 335,531 $ 271,597 $ 260,743 $ 260,401
Capitalized interest........ 48 8,396 -- -- 1,542
Interest component of rental
expense.................. 32,315 28,096 32,274 29,926 30,828
---------- ---------- ---------- ---------- ----------
Total fixed charges...... $ 329,678 $ 372,023 $ 303,871 $ 290,669 $ 292,771
---------- ---------- ---------- ---------- ----------
Earnings:
Income before income taxes.. $1,278,590 $ 673,058 $1,463,676 $ 835,131 $1,254,981
Add: Interest expense*...... 297,315 335,531 271,597 260,743 260,401
Add: Interest component of
rental expense........... 32,315 28,096 32,274 29,926 30,828
Add: Amortization of
capitalized interest..... 1,862 2,129 2,799 3,050 3,525
---------- ---------- ---------- ---------- ----------
Earnings as adjusted..... $1,610,082 $1,038,814 $1,770,346 $1,128,850 $1,549,735
---------- ---------- ---------- ---------- ----------
Ratio of earnings to fixed
charges.................. 4.88 2.79 5.83 3.88 5.29
========== ========== ========== ========== ==========
</Table>
* Interest expense includes amortization of debt expense and any discount or
premium relating to indebtedness.
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-13
<SEQUENCE>10
<FILENAME>j9491701exv13.txt
<DESCRIPTION>PORTIONS OF THE ANNUAL REPORT TO SHAREHOLDERS
<TEXT>
<PAGE>
Exhibit 13
MANAGEMENT'S DISCUSSION AND ANALYSIS
H.J. Heinz Company and Subsidiaries
AGREEMENT On June 13, 2002, Heinz announced that it will transfer to
BETWEEN H.J. a wholly owned subsidiary ("Spinco") certain assets and
HEINZ COMPANY liabilities of its U.S. and Canadian pet food and pet snacks,
AND DEL MONTE U.S. tuna, U.S. retail private label soup and gravy, College
FOODS COMPANY Inn broths and U.S. infant feeding businesses and distribute
all of the shares of Spinco common stock on a pro rata basis to
its shareholders. Immediately thereafter, Spinco will merge
with a wholly owned subsidiary of Del Monte Foods Company ("Del
Monte") resulting in Spinco becoming a wholly owned subsidiary
of Del Monte (the "Merger"). In connection with the Merger,
each share of Spinco common stock will be automatically
converted into shares of Del Monte common stock that will
result in the fully diluted Del Monte common stock at the
effective time of the Merger being held approximately 74.5% by
Heinz shareholders and approximately 25.5% by the Del Monte
shareholders. As a result of the transaction, Heinz will
receive approximately $1.1 billion in cash that will be used to
retire debt.
The Spinco businesses, which together generate approximately
$1.8 billion in annual sales (or approximately 20% of annual
Heinz revenues), include the following brands: StarKist,
9-Lives, Kibbles 'n Bits, Pup-Peroni, Snausages, Nawsomes,
Heinz Nature's Goodness baby food and College Inn broths.
The strategic rationale behind this transformative initiative
is to make Heinz a more focused and faster-growing business
leveraging two strategic platforms of Meal Enhancers (ketchup,
condiments and sauces) and Meals & Snacks (frozen and ambient).
Heinz expects to increase marketing by more than $100 million
in Fiscal 2003 to support product innovation and to drive
growth.
Pending completion of the transaction, Heinz expects it will
also adjust its common stock dividend beginning April 2003. The
expected indicated dividend will be $1.08 per share, a 33%
reduction from the present rate of $1.62 per share, which is
consistent with its peer group and above the S&P 500 average.
Upon completion of the transaction, Heinz will be a more
global company, with approximately 56% of its sales coming from
outside of the U.S. Heinz intends to accelerate its focus on
cash flow with improvements in working capital and a limit on
capital expenditures. In addition to the approximate $1.1
billion reduction in debt as a result of the transaction, Heinz
is targeting an additional $1.0 billion of debt reduction by
the end of Fiscal 2005.
Fiscal 2003 will be a transition year, as the transaction is
not expected to close until late in calendar year 2002 or early
in calendar year 2003. Heinz anticipates restructuring and
deal-related costs of approximately $160 million after tax to
be incurred in Fiscal 2003. Heinz anticipates that its growth
will be based on annualized earnings estimate of $2.00 to $2.05
per share for its realigned, more focused portfolio. The
outlook beyond Fiscal 2003 is to target the following
improvements:
- 3-4% annualized top-line growth;
- Consistent annualized 8-10% EPS growth;
- A substantial increase in marketing spending as a
percentage of sales--up to 5% of net sales by Fiscal 2005;
_ A simplified management structure, with greater
accountability and commensurate cost-efficiencies going
forward; and
_ Improved working capital intensity and a better cash
conversion cycle.
The Merger, which has been approved by the Boards of Directors
of Heinz and Del Monte, is subject to the approval by the
shareholders of Del Monte and receipt of a ruling from the
Internal Revenue Service that the contribution of the assets
and liabilities to Spinco and
(31)
<PAGE>
the distribution of the shares of common stock of Spinco to
Heinz shareholders will be tax-free to Heinz, Spinco and the
shareholders of Heinz. The Merger is also subject to receipt
of applicable governmental approvals and the satisfaction of
other customary closing conditions.
STREAMLINE In the fourth quarter of Fiscal 2001, the company announced
a restructuring initiative named "Streamline." This
initiative included a worldwide organizational restructuring
aimed at reducing overhead costs, the closure of the
company's tuna operations in Puerto Rico, the consolidation
of the company's North American canned pet food production to
Bloomsburg, Pennsylvania (which resulted in ceasing canned
pet food production at the company's Terminal Island,
California facility), and the divestiture of the company's
U.S. fleet of fishing boats and related equipment.
Pretax savings generated from Streamline were approximately
$25 million in Fiscal 2002 and are projected to grow to an
estimated $40 million a year beginning in Fiscal 2003. Non-
cash savings are expected to be less than $6 million per year.
The total cost of this initiative will be approximately $315
million. Management estimates that these actions will impact
approximately 2,800 employees.
Streamline Status Update
During the first quarter of Fiscal 2002, the company recognized
restructuring and implementation charges of $16.1 million
pretax ($0.04 per share). [Note: All earnings per share amounts
included in Management's Discussion and Analysis are presented
on an after-tax diluted basis.] In the fourth quarter of Fiscal
2002, the company recorded a net charge of $1.7 million pretax
to reflect revisions in original cost estimates. This charge
was primarily the result of higher than expected asset
write-downs (primarily related to the Puerto Rican business)
and severance costs (primarily in Europe and the U.S.), offset
by lower than expected contract exit costs associated with the
company's Terminal Island, California facility and the Puerto
Rican facility. Total Fiscal 2002 pretax charges of $8.7
million were classified as cost of products sold and $9.1
million as selling, general and administrative expenses
("SG&A").
During Fiscal 2001, the company recognized restructuring
charges and implementation costs totaling $298.8 million pretax
($0.66 per share). Pretax charges of $192.5 million were
classified as cost of products sold and $106.2 million as SG&A.
Implementation costs were recognized as incurred in Fiscal 2002
($10.4 million pretax) and Fiscal 2001 ($22.6 million pretax)
and consist of incremental costs directly related to the
implementation of the Streamline initiative. These costs
include idle facility costs, consulting fees, cost premiums
related to production transfers and relocation costs.
In Fiscal 2001, the company completed the closure of its tuna
operations in Puerto Rico, ceased production of canned pet food
in the company's Terminal Island, California facility and sold
its U.S. fleet of fishing boats and related equipment. In
Fiscal 2002, the company continued and substantially completed
its implementation of its global overhead reduction plan. To
date, these actions have resulted in a net reduction of the
company's workforce of approximately 2,600 employees.
OPERATION EXCEL Background
In Fiscal 1999, the company announced a growth and
restructuring initiative named "Operation Excel." This
initiative was a multi-year, multi-faceted program which
established manufacturing centers of excellence, focused the
product portfolio, realigned the company's management teams and
invested in growth initiatives. The total cost of Operation
Excel was $1.2 billion, an increase from the original estimate
of $1.1 billion. This increase was attributable to additional
projects and implementation costs which included exiting the
company's domestic can making operations, exiting a tuna
processing facility in Ecuador and additional
(32)
<PAGE>
initiatives throughout the globe. These additional projects
delivered business simplifications and improvements in the
company's capital structure.
As part of Operation Excel, the company established
manufacturing centers of excellence around the world that
resulted in significant changes to its manufacturing footprint.
In addition, the company focused its portfolio of product lines
on six core food categories: ketchup, condiments and sauces;
frozen foods; tuna; soup, beans and pasta meals; infant foods;
and pet products. A consequence of this focus was the sale of
the Weight Watchers classroom business in Fiscal 2000. Seven
other smaller businesses, which had combined annual revenues of
approximately $80 million, also have been disposed.
A major element of Operation Excel was the realignment of the
company's management teams to provide processing and product
expertise across the regions of North America, Europe and
Asia/Pacific. Growth initiatives included relaunching many of
our core brands and additional investments in marketing and
pricing programs for our core businesses, particularly in
ketchup, condiments and sauces, frozen foods, infant foods and
tuna.
The pretax savings generated from Operation Excel initiatives
were approximately $70 million in Fiscal 2000, $135 million in
Fiscal 2001 and $185 million in Fiscal 2002 and are projected
to grow to approximately $200 million in Fiscal 2003 and
thereafter. The unfavorable trend in foreign exchange rates has
caused these savings to be lower than originally planned by
approximately $5 million in Fiscal 2001, $10 million in Fiscal
2002 and $15 million in Fiscal 2003 and thereafter. In
addition, savings projected for the consolidation of factories
in the Asia/Pacific region are not expected to meet original
estimates. Also, the cancellation of some projects, primarily
the decision not to transfer certain European baby food
production, will result in lower savings than originally
projected.
Operation Excel Status Update
The company has substantially completed Operation Excel. During
Fiscal 2002, the company utilized approximately $9 million of
severance and exit accruals. The utilization of the accruals
related principally to lease obligations and employee
terminations.
During Fiscal 2001, the company recognized restructuring
charges of $55.7 million pretax, or $0.10 per share. These
charges were primarily associated with exiting the company's
domestic can making operations, exiting a tuna processing
facility in Ecuador, and higher than originally expected
severance costs associated with creating the single North
American Grocery & Foodservice headquarters in Pittsburgh,
Pennsylvania. This charge was recorded in cost of products sold
($44.8 million) and SG&A ($10.8 million). This charge was
offset by the reversals of unutilized Operation Excel accruals
and asset write-downs of $78.8 million pretax, or $0.17 per
share. These reversals were recorded in cost of products sold
($46.3 million) and SG&A ($32.5 million) and were primarily the
result of lower than expected lease termination costs related
to exiting the company's fitness business, revisions in
estimates of fair values of assets which were disposed of as
part of Operation Excel, the company's decision not to exit
certain U.S. warehouses due to higher than expected volume
growth, and the company's decision not to transfer certain
European baby food production. Implementation costs of $311.6
million pretax ($0.59 per share) were also recognized in Fiscal
2001. These costs were classified as cost of products sold
($146.4 million) and SG&A ($165.1 million).
During Fiscal 2000, the company recognized restructuring
charges of $194.5 million pretax, or $0.37 per share. Pretax
charges of $107.7 million were classified as cost of products
sold and $86.8 million as SG&A. Also during Fiscal 2000, the
company recorded a reversal of $18.2 million pretax ($0.04 per
share) of Fiscal 1999 restructuring accruals and asset
write-downs, primarily for the closure of the West Chester,
Pennsylvania facility, which remains in operation as a result
of the sale of the Bloomsburg frozen pasta facility in Fiscal
2000. Implementation costs of $216.5 million pretax ($0.41 per
share) were classified as cost of products sold ($79.2 million)
and SG&A ($137.3 million).
During Fiscal 1999, the company recognized restructuring
charges and implementation costs totaling $552.8 million pretax
($1.11 per share). Pretax charges of $396.4 million were
classified as cost of products sold and $156.4 million as SG&A.
(33)
<PAGE>
Implementation costs were recognized as incurred and
consisted of incremental costs directly related to the
implementation of Operation Excel, including consulting fees,
employee training and relocation costs, unaccruable severance
costs associated with terminated employees, equipment
relocation costs and commissioning costs.
The company has closed or exited all of the 21 factories or
businesses that were scheduled for closure or divestiture. In
addition, the company also exited its domestic can making
operations and a tuna processing facility in Ecuador. Operation
Excel impacted approximately 8,500 employees with a net
reduction in the workforce of approximately 7,100 after
expansion of certain facilities. The exit of the company's
domestic can making operations and its tuna processing facility
in Ecuador resulted in a reduction of the company's workforce
of approximately 2,500 employees. During Fiscal 2002, Fiscal
2001, Fiscal 2000 and Fiscal 1999, the company's workforce had
a net reduction of approximately 200 employees, 3,700
employees, 3,000 employees and 200 employees, respectively.
RESULTS OF During the fourth quarter of Fiscal 2002, the company
OPERATIONS adopted Emerging Issues Task Force ("EITF") statements
relating to the classification of vendor consideration and
certain sales incentives. The adoption of these EITF statements
has no impact on operating income, net earnings, or basic or
diluted earnings per share; however, revenues were reduced by
approximately $693 million in Fiscal 2002, $610 million in
Fiscal 2001, and $469 million in Fiscal 2000. Prior period data
has been reclassified to conform to the current year
presentation.
2002 versus 2001: Sales for Fiscal 2002 increased $610.1
million, or 6.9%, to $9.43 billion from $8.82 billion in Fiscal
2001. Acquisitions increased sales by $862.9 million, or 9.8%,
and higher pricing increased sales by $98.6 million, or 1.1%.
Offsetting these improvements were decreases from divestitures
of $165.6 million, or 1.9%, foreign exchange translation rates
of $147.7 million, or 1.7%, and volume of $38.1 million, or
0.4%. Domestic operations contributed approximately 51.0% of
consolidated sales in Fiscal 2002 compared to 51.3% in Fiscal
2001.
The favorable impact of acquisitions is primarily related to
Classico and Aunt Millie's pasta sauces, Mrs. Grass Recipe
soups and Wyler's bouillons and soups in the North American
segment; Delimex frozen Mexican foods, Anchor's Poppers retail
frozen appetizers and licensing rights to the T.G.I. Friday's
brand of frozen snacks and appetizers in the U.S. Frozen
segment; and the Honig brands of soups, sauces and pasta meals,
HAK brand of vegetables packed in glass and KDR brand of sport
drinks, juices, spreads and sprinkles in the Europe segment.
Sales of the Heinz North America segment increased $135.9
million, or 5.5%. Acquisitions, net of divestitures, increased
sales 10.8%. Lower pricing decreased sales 2.3%, primarily
related to increased marketing spend across all major brands
and to foodservice ketchup. Sales volume decreased 2.4%,
primarily in the foodservice business, steak sauces and infant
feeding, partially offset by volume increases in soups and
grilling sauces. The weaker Canadian dollar decreased sales
0.5%.
Sales of the U.S. Pet Products and Seafood segment decreased
$22.0 million, or 1.5%. Unfavorable pricing decreased sales
0.3%, primarily in pet food and pet snacks, partially offset by
higher pricing of tuna. Sales volume decreased 0.2%, primarily
in pet food, partially offset by volume increases in pet snacks
and tuna. Divestitures decreased sales 1.1%.
U.S. Frozen's sales increased $214.9 million, or 22.5%.
Acquisitions increased sales 26.8%. Sales volume increased 4.7%
due primarily to Smart Ones frozen entrees, Boston Market
HomeStyle Meals and Bagel Bites snacks, partially offset by
volume decreases in frozen potatoes. Lower pricing decreased
sales 1.0%, primarily due to increased marketing spend across
all major brands and lower pricing in Boston Market HomeStyle
Meals, partially offset by higher pricing of Smart Ones frozen
entrees and frozen potatoes. Divestures reduced sales by 8.0%
due to the sale of The Budget Gourmet.
Heinz Europe's sales increased $251.6 million, or 9.7%.
Acquisitions, net of divestitures, increased sales 11.0%.
Higher pricing increased sales 1.5%, primarily due to higher
pricing in seafood, infant feeding, beans and soup. Volume
decreased by 0.4%, driven primarily
(34)
<PAGE>
by infant feeding, partially offset by increases in grocery
ketchup, salad cream and weight control entrees. Unfavorable
foreign exchange translation rates decreased sales by 2.4%.
Sales in Asia/Pacific decreased $60.5 million, or 5.8%.
Unfavorable exchange rates reduced sales by 6.5%. Higher
pricing increased sales 1.8%, primarily due to sauces and
juices. Sales volume decreased 0.6% due primarily to sauces and
corned beef, partially offset by volume increases in poultry
and juices. Divestitures, net of acquisitions, reduced sales by
0.5%.
Sales of Other Operating Entities increased $90.1 million, or
28.1%. Favorable pricing increased sales 34.4%, primarily in
certain highly inflationary countries. Sales volume decreased
1.7%, primarily in tuna offset by infant feeding and grocery
ketchup. Other items, net, reduced sales by 4.6% mainly due to
the divestitures of the South African frozen and pet food
businesses.
The current year's results were negatively impacted by net
Streamline restructuring charges and implementation costs
totaling $17.9 million pretax ($0.03 per share). Pretax charges
of $8.7 million were classified as cost of products sold and
$9.1 million as SG&A. Last year's results were negatively
impacted by special items which net to $418.4 million after-tax
($1.19 per share).
The following tables provide a comparison of the company's
reported results and the results excluding special items for
Fiscal 2002 and Fiscal 2001.
<TABLE>
<CAPTION>
Fiscal Year (52 Weeks) Ended May 1, 2002
-------------------------------------------------------------------------------------------
(Dollars in millions, Gross Operating
except per share amounts) Net Sales Profit Income Net Income Per Share
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Reported results $ 9,431.0 $ 3,337.2 $ 1,590.5 $ 833.9 $ 2.36
Revisions to accruals and asset
write-downs--Fourth Quarter
2002 -- -- 1.7 (4.1) (0.01)
Streamline restructuring costs -- -- 5.7 3.6 0.01
Streamline implementation costs -- 8.7 10.5 9.4 0.03
- ----------------------------------------------------------------------------------------------------------------------------
Results excluding special items $ 9,431.0 $ 3,345.9 $ 1,608.4 $ 842.8 $ 2.39
- ----------------------------------------------------------------------------------------------------------------------------
<CAPTION>
Fiscal Year (52 Weeks) Ended May 2, 2001
-------------------------------------------------------------------------------------------
(Dollars in millions, Gross Operating
except per share amounts) Net Sales Profit Income Net Income Per Share
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Reported results $ 8,820.9 $ 2,937.3 $ 982.4 $ 494.9* $ 1.41*
Operation Excel restructuring -- 44.8 55.7 35.0 0.10
Operation Excel implementation
costs -- 146.4 311.6 208.7 0.59
Operation Excel reversal -- (46.3) (78.8) (60.9) (0.17)
Streamline restructuring -- 176.6 276.2 211.6 0.60
Streamline implementation costs -- 16.0 22.6 18.8 0.06
Loss on sale of The All
American Gourmet -- -- 94.6 66.2 0.19
Equity loss on investment in
The Hain Celestial Group -- -- -- 3.5 0.01
Acquisition costs -- -- 18.5 11.7 0.03
Italian tax benefit -- -- -- (93.2) (0.27)
- ----------------------------------------------------------------------------------------------------------------------------
Results excluding special items $ 8,820.9 $ 3,274.8 $ 1,682.7 $ 896.4 $ 2.55
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
*Before cumulative effect of accounting changes (Note: Totals may not add due to
rounding.)
Gross profit increased $399.9 million, or 13.6%, to $3.34
billion from $2.94 billion, and the gross profit margin
increased to 35.4% from 33.3%. Excluding the special items
noted above, gross profit increased $71.2 million, or 2.2%, to
$3.35 billion from $3.27 billion, and the gross profit margin
decreased to 35.5% from 37.1%. Gross profit for the Heinz North
America segment decreased $0.2 million as the favorable impact
of acquisitions was offset by lower pricing and a decrease in
the foodservice business. The U.S. Pet Products and Seafood
segment's gross profit decreased $35.8 million, or 7.6%,
primarily due to price decreases in pet food and pet snacks,
increased ingredient and manufacturing costs and a shift to
less profitable, larger-size products. Pet food ingredient
costs also increased as a result of
(35)
<PAGE>
reformulating recipes to improve palatability. U.S. Frozen's
gross profit increased $89.8 million, or 25.5%, due primarily
to acquisitions. Europe's gross profit increased $74.4
million, or 7.5%, due primarily to acquisitions and increased
pricing. The Asia/Pacific segment's gross profit decreased
$71.6 million, or 19.7%, due primarily to poor factory
operations in connection with the movement of manufacturing to
New Zealand from Australia and Japan, and unfavorable foreign
exchange rates, partially offset by increased pricing. During
Fiscal 2002, New Zealand's factories experienced
inefficiencies as a result of significant changes in the
supply chain matrix. Gross profit in the Other Operating
Entities segment increased $18.7 million, or 18.8%, due
primarily to favorable pricing.
SG&A decreased $208.2 million, or 10.7%, to $1.75 billion
from $1.95 billion and decreased as a percentage of sales to
18.5% from 22.2%. Excluding the special items noted above, SG&A
increased $145.5 million, or 9.1%, to $1.74 billion from $1.59
billion and increased as a percentage of sales to 18.4% from
18.0%. This increase is primarily attributable to acquisitions
and increased selling and distribution costs in North America
and increased general and administrative costs in Europe.
Total marketing support (including trade and consumer
promotions and media) increased $256.8 million, or 11.6%, to
$2.48 billion from $2.22 billion on a sales increase of 6.9%.
(See Note 17 to the Consolidated Financial Statements.)
Operating income increased $608.1 million, or 61.9%, to $1.59
billion from $982.4 million and increased as a percentage of
sales to 16.9% from 11.1%. Excluding the special items noted
above, operating income decreased $74.4 million, or 4.4%, to
$1.61 billion from $1.68 billion and decreased as a percentage
of sales to 17.1% from 19.1%. Excluding the special items in
both years, domestic operations provided approximately 59% and
50% of operating income in Fiscal 2002 and 2001, respectively.
The Heinz North America segment's operating income increased
$36.6 million, or 6.8%, to $578.2 million from $541.6 million.
Excluding the special items noted above, operating income
decreased $63.6 million, or 9.8%, to $584.3 million from $648.0
million, due primarily to the decrease in gross profit driven
by the foodservice business and higher selling and distribution
costs, partially offset by the favorable impact of
acquisitions.
The U.S. Pet Products and Seafood segment's operating income
increased $246.2 million to $191.6 million from a loss of $54.5
million. Excluding the special items noted above, operating
income decreased $31.1 million, or 13.6%, to $197.1 million
from $228.2 million, due primarily to the decrease in gross
profit.
The U.S. Frozen segment's operating income increased $160.8
million to $244.7 million from $84.0 million. Excluding the
special items noted above, operating income increased $42.7
million, or 21.1%, to $244.7 million from $202.0 million as the
favorable impact of acquisitions was partially offset by lower
pricing and increased selling and distribution costs and the
divestiture of The Budget Gourmet.
Europe's operating income increased $153.2 million to $541.8
million from $388.6 million. Excluding the special items noted
above, operating income increased $27.4 million, or 5.3%, to
$545.4 million from $518.0 million. This increase is primarily
attributable to acquisitions, favorable pricing and the tuna
business, partially offset by increased marketing to support
key brands across Europe and infrastructure costs.
Asia/Pacific's operating income decreased $14.1 million to
$82.1 million from $96.1 million. Excluding the special items
noted above, operating income decreased $65.7 million, or
44.5%, to $81.9 million from $147.6 million. This decrease is
primarily attributable to the unfavorable operating performance
brought about by the movement of manufacturing to New Zealand
from Australia and Japan and the significant realignment of
manufacturing facilities. Operations are expected to improve
during the latter half of Fiscal 2003.
Excluding special items, Other Operating Entities' operating
income increased $17.2 million, or 45.2%, primarily due to
higher pricing.
Net interest expense decreased $43.4 million to $266.8
million from $310.3 million last year, driven by lower interest
rates, partially offset by increased borrowings. Other expense
increased $46.1 million to $45.1 million from other income of
$1.0 million last year. Excluding special items, other expense
increased $51.6 million to $45.1 million from other income of
$6.6 million, primarily due to an increase in minority interest
expense and gains from foreign currency hedge contracts
recorded in the prior year.
(36)
<PAGE>
The effective tax rate for Fiscal 2002 was 34.8% compared to
26.5% last year. The Fiscal 2001 rate includes a benefit of
$93.2 million, or $0.27 per share, from tax planning and new
tax legislation in Italy, partially offset by restructuring
expenses in lower rate jurisdictions. Excluding the special
items identified above, the effective tax rate was 35.0% in
both years.
Net income increased $355.9 million to $833.9 million from
$478.0 million last year, and earnings per share increased to
$2.36 from $1.36. In Fiscal 2001, the company changed its
method of accounting for revenue recognition in accordance with
Staff Accounting Bulletin (SAB) No. 101, "Revenue Recognition
in Financial Statements" (see Note 1 to the Consolidated
Financial Statements). The cumulative effect of adopting SAB
No. 101 was $16.5 million ($0.05 per share) in Fiscal 2001.
Excluding the special items noted above and the prescribed
accounting change, net income decreased 6.0% to $842.8 million
from $896.4 million, and earnings per share decreased 6.3% to
$2.39 from $2.55 last year.
The impact of fluctuating exchange rates for Fiscal 2002
remained relatively consistent on a line-by-line basis
throughout the Consolidated Statement of Income.
2001 versus 2000: Sales for Fiscal 2001 decreased $118.5
million, or 1.4%, to $8.82 billion from $8.94 billion in Fiscal
2000. Volume increased sales by $215.1 million, or 2.4%, and
acquisitions increased sales by $519.4 million, or 5.8%.
Divestitures reduced sales by $284.5 million, or 3.2%, lower
pricing reduced sales by $166.2 million, or 1.9%, and the
unfavorable impact of foreign exchange translation rates
reduced sales by $402.3 million, or 4.5%. Domestic operations
contributed approximately 51% of consolidated sales in both
fiscal years.
Sales of the Heinz North America segment increased $156.5
million, or 6.8%. Sales volume increased 4.3%, due to increases
in ketchup, condiments and sauces, foodservice, gravy and
canned soups. Acquisitions, net of divestitures, increased
sales 3.2%. Slightly lower pricing decreased sales 0.3% and
weaker Canadian dollar decreased sales 0.4%.
Sales of the U.S. Pet Products and Seafood segment decreased
$187.3 million, or 11.5%. Lower pricing decreased sales 7.5%,
primarily in light meat tuna, dry dog food and cat treats.
Sales volume decreased 3.4%, primarily in tuna and canned pet
food. Divestitures decreased sales 0.6%.
The U.S. Frozen segment's sales increased $87.0 million, or
10.0%. Sales volume increased 10.3%, driven by Smart Ones
frozen entrees, Boston Market frozen meals, Bagel Bites snacks
and frozen potatoes, partially offset by a decrease in The
Budget Gourmet line of frozen entrees and frozen pasta. Higher
pricing increased sales by 1.8% driven by Smart Ones frozen
entrees and frozen potatoes, partially offset by increased
promotions. Divestitures reduced sales 2.1% mainly due to the
sale of The All American Gourmet business and its Budget
Gourmet and Budget Gourmet Value Classics brands of frozen
entrees.
Sales in Europe increased $108.1 million, or 4.4%.
Acquisitions, net of divestitures, increased sales 14.1%, due
primarily to the acquisition of CSM Food Division of CSM
Nederland NV ("CSM") and the full-year impact of the United
Biscuit's European Frozen and Chilled Division ("UB"). Sales
volume increased 1.7%, due to increases in tuna, other
seafoods, and beans, partially offset by a decrease in infant
foods and frozen pizza. Lower pricing decreased sales 1.4%,
driven primarily by increased promotions to support brands
across Europe. The unfavorable impact of foreign exchange
translation rates reduced sales by $247.6 million, or 10.0%.
Sales in Asia/Pacific decreased $126.3 million, or 10.8%. The
unfavorable impact of foreign exchange translation rates
reduced sales by $135.1 million, or 11.6%. Volume increased
sales by 2.1% due to increases in poultry, tuna, and infant
foods partially offset by decreases in nutritional drinks and
pet foods. Other items, net, decreased sales by 1.3%.
Sales of Other Operating Entities decreased $156.5 million,
or 32.7%. Divestitures, net of acquisitions, reduced sales
36.1%, primarily due to the divestiture of the Weight Watchers
classroom business in Fiscal 2000. Sales volume increased 3.5%
and higher pricing increased sales 1.7%. Unfavorable foreign
exchange translation rates reduced sales 1.8%.
(37)
<PAGE>
Fiscal 2001 was impacted by a number of special items which
are summarized in the tables below. The Fiscal 2001 results
include Operation Excel implementation costs of $311.6 million
pretax ($0.59 per share), additional Operation Excel
restructuring charges of $55.7 million pretax ($0.10 per share)
and reversals of $78.8 million pretax ($0.17 per share) of
restructuring accruals and assets write-downs. Fiscal 2001
results also include Streamline restructuring charges of $276.2
million pretax ($0.60 per share) and related implementation
costs of $22.6 million pretax ($0.05 per share). During the
fourth quarter of Fiscal 2001, the company completed the sale
of The All American Gourmet business that resulted in a pretax
loss of $94.6 million ($0.19 per share). The Fiscal 2001
results also include pretax costs of $18.5 million ($0.03 per
share) related to attempted acquisitions, a tax benefit of
$93.2 million ($0.27 per share) from tax planning and new tax
legislation in Italy and a loss of $5.6 million pretax ($0.01
per share) which represents the company's equity loss
associated with The Hain Celestial Group's fourth quarter
results which include charges for its merger with Celestial
Seasonings.
Fiscal 2000 results include Operation Excel restructuring
charges of $194.5 million pretax ($0.37 per share), Operation
Excel implementation costs of $216.5 million pretax ($0.41 per
share), reversals of $18.2 million pretax ($0.04 per share) of
Fiscal 1999 restructuring accruals and asset write- downs,
costs related to the company's Ecuador tuna processing facility
of $20.0 million pretax ($0.05 per share), a gain of $18.2
million pretax ($0.03 per share) on the sale of an office
building in the U.K., a pretax contribution of $30.0 million
($0.05 per share) to the H.J. Heinz Company Foundation, a gain
of $464.6 million pretax ($0.72 per share) on the sale of the
Weight Watchers classroom business and the impact of the Weight
Watchers classroom business of $32.8 million pretax ($0.05 per
share).
The following tables provide a comparison of the company's
reported results and the results excluding special items for
Fiscal 2001 and Fiscal 2000.
<TABLE>
<CAPTION>
Fiscal Year (52 Weeks) Ended May 2, 2001
-------------------------------------------------------------------------------------------
(Dollars in millions, Gross Operating
except per share amounts) Net Sales Profit Income Net Income Per Share
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Reported results $ 8,820.9 $ 2,937.3 $ 982.4 $ 494.9* $ 1.41*
Operation Excel restructuring -- 44.8 55.7 35.0 0.10
Operation Excel implementation
costs -- 146.4 311.6 208.7 0.59
Operation Excel reversal -- (46.3) (78.8) (60.9) (0.17)
Streamline restructuring -- 176.6 276.2 211.6 0.60
Streamline implementation costs -- 16.0 22.6 18.8 0.06
Loss on sale of The All
American Gourmet -- -- 94.6 66.2 0.19
Equity loss on investment in
The Hain Celestial Group -- -- -- 3.5 0.01
Acquisition costs -- -- 18.5 11.7 0.03
Italian tax benefit -- -- -- (93.2) (0.27)
- ----------------------------------------------------------------------------------------------------------------------------
Results excluding special items $ 8,820.9 $ 3,274.8 $ 1,682.7 $ 896.4 $ 2.55
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
*Before cumulative effect of accounting changes
<TABLE>
<CAPTION>
Fiscal Year (53 Weeks) Ended May 3, 2000
-------------------------------------------------------------------------------------------
(Dollars in millions, Gross Operating
except per share amount