-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MP5Jb7dap1NNo3DbYV8d1nTiIIidqEMVujAeRXIVrV3LZ2Pcz5myWrjuJC6w6JPK PX5ETl92fjifUEv5QF45Wg== 0000902664-06-001281.txt : 20060424 0000902664-06-001281.hdr.sgml : 20060424 20060424150945 ACCESSION NUMBER: 0000902664-06-001281 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20060424 DATE AS OF CHANGE: 20060424 GROUP MEMBERS: CASTLERIGG INTERNATIONAL HOLDINGS LIMITED GROUP MEMBERS: CASTLERIGG INTERNATIONAL LIMITED GROUP MEMBERS: CASTLERIGG MASTER INVESTMENTS LTD. GROUP MEMBERS: EDWARD P. GARDEN GROUP MEMBERS: NELSON PELTZ GROUP MEMBERS: PETER W. MAY GROUP MEMBERS: SANDELL ASSET MANAGEMENT CORP. GROUP MEMBERS: THOMAS E. SANDELL GROUP MEMBERS: TRIAN FUND MANAGEMENT GP, LLC GROUP MEMBERS: TRIAN PARTNERS GENERAL PARTNER, LLC GROUP MEMBERS: TRIAN PARTNERS GP, L.P. GROUP MEMBERS: TRIAN PARTNERS MASTER FUND (NON-ERISA), L.P. GROUP MEMBERS: TRIAN PARTNERS MASTER FUND, L.P. GROUP MEMBERS: TRIAN PARTNERS PARALLEL FUND I GENERAL PARTNER, LLC GROUP MEMBERS: TRIAN PARTNERS PARALLEL FUND I, L.P. GROUP MEMBERS: TRIAN PARTNERS PARALLEL FUND II GENERAL PARTNER, LLC GROUP MEMBERS: TRIAN PARTNERS PARALLEL FUND II GP, L.P. GROUP MEMBERS: TRIAN PARTNERS PARALLEL FUND II, L.P. GROUP MEMBERS: TRIAN PARTNERS, L.P. GROUP MEMBERS: TRIAN SPV (SUB) I, L.P. SUBJECT COMPANY: 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: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-17610 FILM NUMBER: 06774996 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 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Trian Fund Management, L.P. CENTRAL INDEX KEY: 0001345471 IRS NUMBER: 203454182 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 41ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 212-451-3000 MAIL ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 41ST FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 SC 13D 1 sc13d.txt H. J. HEINZ COMPANY SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------ SCHEDULE 13D (RULE 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a) (Amendment No. __)* H. J. Heinz Company (Name of Issuer) Common Stock, par value $.25 per share (Title of Class of Securities) 423074103 (CUSIP Number) Marc Weingarten, Esq. Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 (212) 756-2000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) April 17, 2006 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-(1)(f) or 13d-1(g), check the following box / /. NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. (Continued on following pages) (Page 1 of 35 Pages) ------------------------- * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 423074103 SCHEDULE 13D Page 2 of 35 Pages 1 NAME OF REPORTING PERSON Trian Fund Management, L.P. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 20-3454182 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER NUMBER OF SHARES 18,245,000 BENEFICIALLY OWNED BY 9 SOLE DISPOSITIVE POWER EACH REPORTING 0 PERSON WITH 10 SHARED DISPOSITIVE POWER 18,245,000 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 18,245,000 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.4% 14 TYPE OF REPORTING PERSON PN CUSIP No. 423074103 SCHEDULE 13D Page 3 of 35 Pages 1 NAME OF REPORTING PERSON Trian Fund Management GP, LLC S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 20-3454087 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 18,245,000 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 18,245,000 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 18,245,000 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.4% 14 TYPE OF REPORTING PERSON OO CUSIP No. 423074103 SCHEDULE 13D Page 4 of 35 Pages 1 NAME OF REPORTING PERSON Trian Partners GP, L.P. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 20-3453775 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 11,883,417 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 11,883,417 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11,883,417 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.5 % 14 TYPE OF REPORTING PERSON PN CUSIP No. 423074103 SCHEDULE 13D Page 5 of 35 Pages 1 NAME OF REPORTING PERSON Trian Partners General Partner, LLC S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 20-3453595 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 11,883,417 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 11,883,417 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11,883,417 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.5% 14 TYPE OF REPORTING PERSON OO CUSIP No. 423074103 SCHEDULE 13D Page 6 of 35 Pages 1 NAME OF REPORTING PERSON Trian Partners, L.P. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 20-3453988 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 1,386,965 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 1,386,965 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,386,965 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.4% 14 TYPE OF REPORTING PERSON PN CUSIP No. 423074103 SCHEDULE 13D Page 7 of 35 Pages 1 NAME OF REPORTING PERSON Trian Partners Master Fund, L.P. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 98-0468601 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 4,975,517 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 4,975,517 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,975,517 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.5% 14 TYPE OF REPORTING PERSON PN CUSIP No. 423074103 SCHEDULE 13D Page 8 of 35 Pages 1 NAME OF REPORTING PERSON Trian Partners Master Fund (Non-ERISA), L.P. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 98-0471467 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 387,805 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 387,805 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 387,805 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% 14 TYPE OF REPORTING PERSON PN CUSIP No. 423074103 SCHEDULE 13D Page 9 of 35 Pages 1 NAME OF REPORTING PERSON Trian Partners Parallel Fund I, L.P. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 20-3694154 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 318,576 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 318,576 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 318,576 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% 14 TYPE OF REPORTING PERSON PN CUSIP No. 423074103 SCHEDULE 13D Page 10 of 35 Pages 1 NAME OF REPORTING PERSON Trian Partners Parallel Fund I General Partner, LLC S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 20-3694293 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 318,576 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 318,576 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 318,576 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% 14 TYPE OF REPORTING PERSON 00 CUSIP No. 423074103 SCHEDULE 13D Page 11 of 35 Pages 1 NAME OF REPORTING PERSON Trian Partners Parallel Fund II, L.P. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 87-0763105 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 72,158 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 72,158 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 72,158 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON PN CUSIP No. 423074103 SCHEDULE 13D Page 12 of 35 Pages 1 NAME OF REPORTING PERSON Trian Partners Parallel Fund II GP, L.P. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 87-0763102 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 72,158 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 72,158 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 72,158 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON PN CUSIP No. 423074103 SCHEDULE 13D Page 13 of 35 Pages 1 NAME OF REPORTING PERSON Trian Partners Parallel Fund II General Partner, LLC S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 87-0763099 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 72,158 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 72,158 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 72,158 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON 00 CUSIP No. 423074103 SCHEDULE 13D Page 14 of 35 Pages 1 NAME OF REPORTING PERSON Trian SPV (SUB) I, L.P. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 98-0485814 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 5,133,130 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 5,133,130 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,133,130 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.5% 14 TYPE OF REPORTING PERSON PN CUSIP No. 423074103 SCHEDULE 13D Page 15 of 35 Pages 1 NAME OF REPORTING PERSON Nelson Peltz S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 18,245,000 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 18,245,000 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 18,245,000 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.4% 14 TYPE OF REPORTING PERSON IN CUSIP No. 423074103 SCHEDULE 13D Page 16 of 35 Pages 1 NAME OF REPORTING PERSON Peter W. May S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 18,245,000 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 18,245,000 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 18,245,000 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.4% 14 TYPE OF REPORTING PERSON IN CUSIP No. 423074103 SCHEDULE 13D Page 17 of 35 Pages 1 NAME OF REPORTING PERSON Edward P. Garden S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 18,245,000 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 18,245,000 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 18,245,000 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.4% 14 TYPE OF REPORTING PERSON IN CUSIP No. 423074103 SCHEDULE 13D Page 18 of 35 Pages 1 NAME OF REPORTING PERSON Castlerigg Master Investments Ltd. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 5,381,400 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 5,381,400 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,381,400 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.6% 14 TYPE OF REPORTING PERSON CO CUSIP No. 423074103 SCHEDULE 13D Page 19 of 35 Pages 1 NAME OF REPORTING PERSON Sandell Asset Management Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 5,381,400 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 5,381,400 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,381,400 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.6% 14 TYPE OF REPORTING PERSON CO CUSIP No. 423074103 SCHEDULE 13D Page 20 of 35 Pages 1 NAME OF REPORTING PERSON Castlerigg International Limited S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 5,381,400 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 5,381,400 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,381,400 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.6% 14 TYPE OF REPORTING PERSON CO CUSIP No. 423074103 SCHEDULE 13D Page 21 of 35 Pages 1 NAME OF REPORTING PERSON Castlerigg International Holdings Limited S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 5,381,400 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 5,381,400 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,381,400 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.6% 14 TYPE OF REPORTING PERSON CO CUSIP No. 423074103 SCHEDULE 13D Page 22 of 35 Pages 1 NAME OF REPORTING PERSON Thomas E. Sandell S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON: 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /X/ (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Sweden 7 SOLE VOTING POWER 0 NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY 5,381,400 OWNED BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 0 10 SHARED DISPOSITIVE POWER 5,381,400 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,381,400 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.6% 14 TYPE OF REPORTING PERSON IN CUSIP No. 423074103 SCHEDULE 13D Page 23 of 35 Pages ITEM 1. SECURITY AND ISSUER This Schedule 13D relates to the common stock, par value $.25 per share (the "Shares"), of H. J. Heinz Company, a Pennsylvania corporation (the "Issuer"). The address of the principal executive offices of the Issuer is 600 Grant Street, Pittsburgh, Pennsylvania 15219. ITEM 2. IDENTITY AND BACKGROUND The persons filing this statement are Trian Partners GP, L.P., a Delaware limited partnership ("Trian GP"), Trian Partners General Partner, LLC, a Delaware limited liability company ("Trian GP LLC"), Trian Partners, L.P., a Delaware limited partnership ("Trian Onshore"), Trian Partners Master Fund, L.P., a Cayman Islands exempted limited partnership ("Trian Offshore"), Trian Partners Master Fund (Non-ERISA), L.P., a Cayman Islands exempted limited partnership ("Trian Offshore (Non-ERISA)"), Trian Partners Parallel Fund I, L.P., a Delaware limited partnership ("Parallel Fund I"), Trian Partners Parallel Fund I General Partner, LLC, a Delaware limited liability company ("Parallel Fund I GP LLC"), Trian Partners Parallel Fund II, L.P., a Delaware limited partnership ("Parallel Fund II"), Trian Partners Parallel Fund II GP, L.P., a Delaware limited partnership ("Parallel Fund II GP"), Trian Partners Parallel Fund II General Partner, LLC, a Delaware limited liability company ("Parallel Fund II GP LLC"), Trian SPV (SUB) I, L.P., a Cayman Islands exempted limited partnership ("Trian SPV"), Trian Fund Management, L.P., a Delaware limited partnership ("Trian Management"), Trian Fund Management GP, LLC, a Delaware limited liability company ("Trian Management GP" and, together with the foregoing, the "Trian Entities"), Nelson Peltz, a citizen of the United States of America, Peter W. May, a citizen of the United States of America, Edward P. Garden, a citizen of the United States of America (the Trian Entities and Messrs. Peltz, May and Garden are sometimes hereinafter referred to collectively as the "Trian Filing Persons"), Castlerigg Master Investments Ltd., a British Virgin Islands company ("CMI"), Sandell Asset Management Corp., a Cayman Islands exempted company ("SAMC"), Castlerigg International Limited, a British Virgin Islands company ("CIL"), Castlerigg International Holdings Limited, a British Virgin Islands company ("CIHL"), and Thomas E. Sandell, a citizen of Sweden ("Sandell" and, collectively with CMI, SAMC, CIL and CIHL, the "Sandell Filing Persons" and, together with the Trian Filing Persons, the "Filing Persons"). The principal business address and the address of the principal office of each of the Trian Filing Persons is 280 Park Avenue, 41st Floor, New York, New York 10017, except that the principal business address of Trian Offshore, Trian Offshore (Non-ERISA) and Trian SPV is c/o Goldman Sachs (Cayman) Trust, Limited, P.O. Box 896GT, Harbour Centre, 2nd Floor, George Town, Grand Cayman, Cayman Islands, BWI. The principal business address and the address of the principal office of SAMC and Sandell is 40 West 57th Street, New York, New York 10019. The principal business address and the address of the principal office for each of CMI, CIL and CIHL is c/o Citco Fund Services (Curacao) N.V, Kaya Flamboyan 9, P.O. Box 812, Curacao, Netherlands Antilles. Trian GP LLC is the general partner of Trian GP, which is the general partner of Trian Onshore, Trian Offshore, Trian Offshore (Non-ERISA) and Trian SPV. Parallel Fund I GP LLC is the CUSIP No. 423074103 SCHEDULE 13D Page 24 of 35 Pages general partner of Parallel Fund I. Parallel Fund II GP LLC is the general partner of Parallel Fund II GP, which is the general partner of Parallel Fund II. Trian Management GP is the general partner of Trian Management, which serves as (i) the management company for Trian Onshore, Trian Offshore, Trian Offshore (Non-ERISA), Parallel Fund I, Parallel Fund II and Trian SPV and (ii) the investment manager for a separate account owned by TCMG-MA, LLC (the "Separate Account"), an indirect subsidiary of Triarc Companies, Inc. ("Triarc"). Trian Management has full discretion and authority to make all investment and voting decisions in respect of the Separate Account. Each of Trian GP LLC, Parallel Fund I GP LLC, Parallel Fund II GP LLC and Trian Management GP are owned and controlled by Nelson Peltz, Peter W. May and Edward P. Garden, who therefore are in a position to determine the investment and voting decisions made by the Trian Entities. Trian Onshore, Trian Offshore, Trian Offshore (Non-ERISA), Trian SPV, Parallel Fund I, Parallel Fund II, the Separate Account and CMI are collectively referred to herein as the "Holders." Each of Trian Onshore, Trian Offshore, Trian Offshore (Non-ERISA), Parallel Fund I, Parallel Fund II and Trian SPV is primarily engaged in the business of investing in securities. Trian GP is primarily engaged in the business of serving as the general partner of Trian Onshore, Trian Offshore, Trian Offshore (Non-ERISA) and Trian SPV. Trian GP LLC is primarily engaged in the business of serving as the general partner of Trian GP. Parallel Fund I GP LLC is primarily engaged in the business of serving as the general partner of Parallel Fund I. Parallel Fund II GP LLC is primarily engaged in the business of serving as the general partner of Parallel Fund II GP, which is primarily engaged in the business of serving as the general partner of Parallel Fund II. Trian Management is primarily engaged in the business of serving as a management company for certain of the Trian Entities and as investment manager for the Separate Account. Trian Management GP is primarily engaged in the business of serving as the general partner of Trian Management. Nelson Peltz's present principal occupation or employment is (i) serving as Chief Executive Officer and a founding partner of Trian Management and, as such, managing the investments of Trian Onshore, Trian Offshore, Trian Offshore (Non-ERISA), Parallel Fund I, Parallel Fund II, Trian SPV and the Separate Account and (ii) serving as Chairman and Chief Executive Officer and a director of Triarc. Peter W. May's present principal occupation or employment is (i) serving as President and a founding partner of Trian Management and, as such, managing the investments of Trian Onshore, Trian Offshore, Trian Offshore (Non-ERISA), Parallel Fund I, Parallel Fund II, Trian SPV and the Separate Account and (ii) serving as President and Chief Operating Officer and a director of Triarc. Edward P. Garden's present principal occupation or employment is (i) serving as Portfolio Manager and a founding partner of Trian Management and, as such, managing the investments of Trian Onshore, Trian Offshore, Trian Offshore (Non-ERISA), Parallel Fund I, Parallel Fund II, Trian SPV and the Separate Account and (ii) serving as Vice Chairman and a director of Triarc. CIL is a private investment fund that is primarily engaged in the business of investing in securities and other investment opportunities. CIL invests substantially all of its assets indirectly in CMI, a master trading vehicle. CIHL is the controlling shareholder of CMI and CIL is the controlling shareholder of CIHL. SAMC is primarily engaged in the business of serving as the discretionary investment manager of CIL and CMI. Sandell is the controlling shareholder of CUSIP No. 423074103 SCHEDULE 13D Page 25 of 35 Pages SAMC and therefore may be deemed to share in the voting and dispositive power with SAMC over the securities beneficially owned by CMI or CIL. The name, citizenship, present principal occupation or employment and business address of each director and executive officer of the Sandell Filing Persons are set forth in Schedule A attached hereto. None of the Filing Persons, nor any director, executive officer, general partner or controlling person of any of the Filing Persons, has, during the past five years, (a) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (b) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting, or mandating activities subject to, federal or state securities laws or a finding of any violation with respect to such laws. The Filing Persons have entered into a Joint Filing Agreement, dated as of April 24, 2006 (the "Joint Filing Agreement"), a copy of which is attached hereto as Exhibit 1. The Filing Persons have filed this statement jointly pursuant to the Joint Filing Agreement in view of the Sandell Agreement, as defined and described in Item 6 below. As a result, the Trian Filing Persons and the Sandell Filing Persons may be deemed to be a "group" for purposes of the Act and the regulations issued thereunder, and the group may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Act) all of the Shares beneficially owned by each of the Filing Persons. However, except as described in this statement, the Trian Filing Persons, on the one hand, and the Sandell Filing Persons, on the other, (i) have no agreements or understandings between them relating to the acquisition, disposition or voting of the Shares held by them and (ii) each expressly disclaims beneficial ownership for all purposes of the Shares held by the other. Each of the Filing Persons is responsible for the completeness and accuracy of the information concerning him or it contained herein, but is not responsible for the completeness and accuracy of the information concerning the others, except to the extent that he or it knows or has reason to believe that such information is inaccurate. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION As of 4:00 p.m., New York City time, on April 21, 2006, the aggregate purchase price of the 12,863,600 Shares purchased by Trian Onshore, Trian Offshore, Trian Offshore (Non-ERISA), Parallel Fund I, Parallel Fund II, Trian SPV and the Separate Account, collectively, was $474,659,257.46 (including commissions). As set forth in Item 5, none of the other Trian Filing Persons directly own any Shares or options on Shares. The source of funding for the purchase of the Shares was, and the source of funding for the purchase of any additional Shares is currently expected to be, the respective general working capital of the purchasers. As of 4:00 p.m., New York City time, on April 21, 2006, the aggregate purchase price of the 5,381,400 Shares purchased by CMI was $198,338,756.49 (including commissions). As set forth in Item 5, none of the other Sandell Filing Persons directly own any Shares or options on Shares. The source of funding for the purchase of the Shares was, and the source of funding for the CUSIP No. 423074103 SCHEDULE 13D Page 26 of 35 Pages purchase of any additional Shares is currently expected to be, the general working capital of CMI. ITEM 4. PURPOSE OF TRANSACTION The Filing Persons acquired the Shares for investment purposes because they believe that the Shares were undervalued in the market place and represented an attractive investment opportunity. The Filing Persons believe that the Issuer has a valuable group of core brands but that the business strategy employed by management for the better part of a decade has not resulted in a significant increase in shareholder value. On March 2, 2006, Trian Offshore, on behalf of itself and the other Filing Persons, delivered a letter to the Issuer, in compliance with the advance notice requirement in the Issuer's bylaws and pursuant to the applicable provisions of the Pennsylvania Business Corporation Law, informing the Issuer of its intention to appear in person or by proxy at the Issuer's 2006 annual meeting of shareholders (the "Annual Meeting") to nominate five candidates for election to the Board of Directors of the Issuer (the "Board") and to move a proposal to repeal any amendments to the Issuer's bylaws adopted by the Board and not by the shareholders of the Issuer after June 12, 2002 (the "Proposal"). The nominees are: Nelson Peltz; Peter W. May; Edward P. Garden; Michael Weinstein, Chairman of Inov8 Beverage Company LLC, former CEO of the Snapple Beverage Group and former President, Global Innovation and Business Development for Cadbury Schweppes plc; and Greg Norman, Chairman and CEO of Great White Shark Enterprises, Inc. and a professional golfer (the "Nominees"). In addition, the letter provided that if, due to death or disability, any of the Nominees is unable to stand for election, then one or both of Peter H. Rothschild, Managing Member of Daroth Capital LLC and a director of Wendy's International, Inc. and Deerfield Triarc Capital Corp., and Thomas E. Sandell, Chief Executive Officer of Sandell Asset Management Corp., as applicable, would be nominated to the Board. On March 3, 2006, the Issuer issued a press release stating that the March 2 notice would be forwarded to the Issuer's Corporate Governance Committee for review. On March 13, 2006, a meeting was held between Trian Management's Chief Executive Officer, Nelson Peltz, and William R. Johnson, Chairman, President and Chief Executive Officer of the Issuer, and a representative of one of the Issuer's outside financial advisors. At that meeting, Mr. Peltz informed Mr. Johnson of the Filing Persons' status as significant shareholders and also expressed to Mr. Johnson certain operational improvements and changes in strategy that the Filing Persons would like to see implemented by the Issuer aimed at reversing a decade of poor shareholder returns. At a subsequent meeting held on March 29, 2006, Mr. Johnson, members of his senior management team and representatives of the Issuer's outside financial advisors met with Mr. Peltz, Peter May and Ed Garden, Trian Management's principals, and discussed the Issuer's main business segments. At this meeting, Messrs. Peltz, May and Garden also discussed a number of their ideas to enhance shareholder value and the Issuer's management discussed some of their plans. Messrs. Peltz, May and Garden also shared with management examples of past investments they (or companies controlled by them) made in which they had created significant value by working together with management teams to improve operations and grow free cash flow. Messrs. Peltz, May and Garden also requested that the Nominees be added to the Issuer's Board. Following the meeting on March 29, a representative of one of the Issuer's outside financial advisors advised Trian Management that the Issuer's management had reacted positively to the discussions and that the request for Board representation was being considered CUSIP No. 423074103 SCHEDULE 13D Page 27 of 35 Pages by the Issuer's Corporate Governance Committee. On April 6, 2006, a representative of one of the Issuer's outside financial advisors contacted Trian Management to inform it that the Corporate Governance Committee had rejected the Filing Persons' request for Board representation. As of the date hereof, the discussions between the parties have not resulted in any agreements or understandings. On April 6, 2006, Trian Offshore delivered a demand to the Issuer, pursuant to the Pennsylvania Business Corporation Law, to inspect the shareholder list and related records of the Issuer. The Filing Persons see opportunities to create value at the Issuer through sharper strategic focus, better operational execution and more efficient uses of capital. The Filing Persons currently intend to conduct a proxy solicitation to elect the Nominees to the Issuer's twelve-member Board and obtain approval of the Proposal at the Annual Meeting. If appointed or elected to the Issuer's Board, the Nominees intend to seek to work with other members of the Issuer's Board and management to take steps to dramatically improve operational performance at the Issuer and to enhance shareholder value. The Filing Persons expect to publicly release a report prepared by them that examines the Issuer's performance, proposes various strategies for the enhancement of shareholder value, and analyzes the potential financial impact of such strategies. The Filing Persons intend to review their investment in the Issuer on a continuing basis. Depending on various factors including, without limitation, the Issuer's financial position and strategic direction, the Issuer's response to the actions suggested by the Filing Persons, price levels of the Shares, conditions in the securities market and general economic and industry conditions, the Filing Persons may in the future take such actions with respect to their investment in the Issuer as they deem appropriate including, but not limited to, communicating with management, the Board, other shareholders of the Issuer, industry participants and other relevant or interested parties regarding the Issuer, purchasing additional Shares or selling some or all of the Shares, hedging their position in the Shares or otherwise trading in derivative securities having reference to the Issuer, and/or otherwise changing their intention with respect to any and all matters referred to in Item 4 of Schedule 13D. The Filing Persons do not have any present plan or proposal that would relate to or result in any of the matters set forth in subparagraphs (a) - (j) of Item 4 of Schedule 13D except as set forth herein or such as would occur upon completion of any of the actions discussed herein. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER (a) As of 4:00 pm, New York City time, on April 21, 2006, the Filing Persons beneficially owned, in the aggregate, 18,245,000 Shares, representing approximately 5.4% of the Issuer's outstanding Shares (based upon the 335,012,168 Shares stated by the Issuer to be outstanding as of January 31, 2006 in the Issuer's Quarterly Report on Form 10-Q for the quarterly period ended January 25, 2006). (b) Each of Trian Onshore, Trian Offshore, Trian Offshore (Non-ERISA), Trian SPV, Parallel Fund I and Parallel Fund II beneficially and directly owns and has sole voting power and sole dispositive power with regard to 1,386,965, 4,975,517, 387,805, 5,133,130, 318,576 and 72,158 Shares, respectively, except to the extent that other Filing Persons as described below may be deemed to have shared voting power and shared dispositive power with regard to such Shares. CUSIP No. 423074103 SCHEDULE 13D Page 28 of 35 Pages Beneficial ownership of 589,449 Shares that are directly held in the Separate Account is further described below. Each of Trian GP, Trian GP LLC, Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden, by virtue of their relationships to Trian Onshore, Trian Offshore, Trian Offshore (Non-ERISA) and Trian SPV (discussed in Item 2), may be deemed to have shared voting power and shared dispositive power with regard to, and therefore may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Act), the Shares that Trian Onshore, Trian Offshore, Trian Offshore (Non-ERISA) and Trian SPV directly and beneficially own. Each of Trian GP, Trian GP LLC, Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden disclaims beneficial ownership of such Shares for all other purposes. Each of Parallel Fund I GP LLC, Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden, by virtue of their relationships to Parallel Fund I (discussed in Item 2), may be deemed to have shared voting power and shared dispositive power with regard to, and therefore may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Act), the Shares that Parallel Fund I directly and beneficially owns. Each of Parallel Fund I GP LLC, Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden disclaims beneficial ownership of such Shares for all other purposes. Each of Parallel Fund II GP LLC, Parallel Fund II GP, Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden, by virtue of their relationships to Parallel Fund II (discussed in Item 2), may be deemed to have shared voting power and shared dispositive power with regard to, and therefore may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Act), the Shares that Parallel Fund II directly and beneficially owns. Each of Parallel Fund II GP LLC, Parallel Fund II GP, Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden disclaims beneficial ownership of such Shares for all other purposes. Each of Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden, by virtue of their relationships to the Separate Account (discussed in Item 2), may be deemed to have shared voting power and shared dispositive power with regard to, and therefore may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Act), the Shares that are directly held in the Separate Account. Each of Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden disclaims beneficial ownership of such Shares for all other purposes. CMI beneficially and directly owns and has sole voting power and sole dispositive power with regard to 5,381,400 Shares except to the extent that other Filing Persons as described below may be deemed to have shared voting power and shared dispositive power with regard to such Shares. Each of CIL, CIHL, SAMC and Sandell, by virtue of their relationships to CMI (discussed in Item 2), and each of Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden, by virtue of the Sandell Agreement (discussed in Items 2 and 6), may be deemed to have shared voting power and shared dispositive power with regard to, and therefore may be deemed to beneficially own (as that term is defined in Rule 13d-3 under the Act), the Shares that CMI directly and beneficially owns. Each of SAMC, Sandell, Trian Management, Trian Management GP, Nelson Peltz, Peter W. May and Edward P. Garden disclaims beneficial ownership of such Shares for all other purposes. CUSIP No. 423074103 SCHEDULE 13D Page 29 of 35 Pages (c) Schedule B hereto sets forth all transactions with respect to the Shares effected during the past 60 days by any of the Filing Persons, inclusive of any transactions effected through 4:00 p.m., New York City time, on April 21, 2006. (d) Except for the Filing Persons, and Triarc with respect to the Separate Account, no person is known by the Filing Persons to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Shares beneficially owned by the Filing Persons. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIP WITH RESPECT TO SECURITIES OF THE ISSUER Trian Management and SAMC are parties to an agreement, dated February 7, 2006 (the "Sandell Agreement"), which is filed as Exhibit 2 hereto, pursuant to which they have agreed to coordinate their efforts with respect to the purchase and sale of interests in the Issuer and the proposal of certain actions and/or transactions to the Issuer. Among other things, the Sandell Agreement provides that Trian Management has final approval of all acquisitions, dispositions and exercises of securities of the Issuer (subject to discussion and consultation with SAMC), and provides that purchases and sales of such securities be allocated as follows: (i) purchases having an aggregate purchase price of up to $660 million shall be allocated 70% to Holders managed by or affiliated with Trian Management and 30% to CMI (such percentages, the "Pro Rata Percentages"), (ii) purchases in excess of $660 million and up to $860 million shall be allocated to CMI (which allocation currently has been waived pursuant to an informal understanding between the parties), and (iii) purchases in excess of $860 million shall be allocated in accordance with the Pro Rata Percentages. Notwithstanding the foregoing, the Pro Rata Percentages shall automatically be adjusted, from time to time, to reflect the actual ratio of securities owned by the parties. The Sandell Agreement also provides that Trian Management has final approval (subject to prior notice and consultation with SAMC) with respect to, among other things, (i) voting the Shares acquired by the Holders, (ii) whether to initiate any proxy contest involving the Issuer and all matters related thereto, including whether to change the parties' intentions with respect to the Issuer, and (iii) all communications with the Issuer and any public disclosures, public statements or other third party communications, including the making of any proposals regarding corporate transactions. Under the Sandell Agreement, SAMC has appointed Trian Management (or its designees) as its proxy during the term of the Sandell Agreement in respect of all securities of the Issuer owned or acquired by the Holder managed by or affiliated with SAMC. The parties have also agreed to coordinate certain of their regulatory filings and to share certain expenses incurred by either of them in connection with the furtherance of the activities engaged in by them pursuant to the Sandell Agreement. Under the Sandell Agreement, SAMC has agreed to pay 75% of such expenses, except that trading commissions, indemnity obligations and certain regulatory filing fees will be allocated according to the Pro Rata Percentages. The Sandell Agreement terminates at the conclusion of the Annual Meeting. The foregoing description of the Sandell Agreement is a summary only and is qualified in its entirety by reference to the Sandell Agreement, which is incorporated herein by reference. Trian GP is the Managing General Partner and Trian Partners Cayman, Ltd. is the Administrative General Partner of Trian SPV pursuant to the Amended and Restated Limited Partnership Agreement of Trian SPV (SUB) I, L.P., dated as of March 1, 2006 (the "Trian SPV Partnership CUSIP No. 423074103 SCHEDULE 13D Page 30 of 35 Pages Agreement"). The sole Limited Partner is Trian SPV I, L.P. Pursuant to the Trian SPV Partnership Agreement, Trian GP has voting and dispositive power over the Shares of the Issuer held by Trian SPV and is entitled, generally on an annual basis, to a portion of the appreciation in the value of the Shares. The foregoing description of the Trian SPV Partnership Agreement is a summary only and is qualified in its entirety by reference to the Trian SPV Partnership Agreement, which is filed as Exhibit 3 hereto and incorporated herein by reference. Except as described herein, none of the Filing Persons has any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to any securities of the Issuer, including but not limited to the transfer or voting of any of the securities, finder's fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or losses, or the giving or withholding of proxies. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS 1. Joint Filing Agreement of the Filing Persons. 2. Agreement dated February 7, 2006 by and among Sandell Asset Management Corp. and Trian Fund Management, L.P. 3. Amended and Restated Limited Partnership Agreement of Trian SPV (SUB) I, L.P., dated as of March 1, 2006. 4. Powers of Attorney. CUSIP No. 423074103 SCHEDULE 13D Page 31 of 35 Pages SIGNATURE After reasonable inquiry and to the best of each of the undersigned's knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: April 24, 2006 TRIAN PARTNERS GP, L.P. By: Trian Partners General Partner, LLC, its general partner By: /s/ Nelson Peltz ------------------------------------ Name: Nelson Peltz Title: Member TRIAN PARTNERS GENERAL PARTNER, LLC By: /s/ Nelson Peltz ------------------------------------ Name: Nelson Peltz Title: Member TRIAN PARTNERS, L.P. By: Trian Partners GP, L.P., its general partner By: Trian Partners General Partner, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN PARTNERS MASTER FUND, L.P. By: Trian Partners GP, L.P., its general partner By: Trian Partners General Partner, LLC, its general partner By: /s/ Nelson Peltz ------------------------------------- Name: Nelson Peltz Title: Member [Signature Page of Schedule 13D - H. J. Heinz Company] CUSIP No. 423074103 SCHEDULE 13D Page 32 of 35 Pages TRIAN PARTNERS MASTER FUND (NON-ERISA), L.P. By: Trian Partners GP, L.P., its general partner By: Trian Partners General Partner, LLC, its general partner By: /s/ Nelson Peltz ------------------------------------- Name: Nelson Peltz Title: Member TRIAN SPV (SUB) I, L.P. By: Trian Partners GP, L.P., its general partner By: Trian Partners General Partner, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN PARTNERS PARALLEL FUND I, L.P. By: Trian Partners Parallel Fund I General Partner, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN PARTNERS PARALLEL FUND I GENERAL PARTNER, LLC By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member [Signature Page of Schedule 13D - H. J. Heinz Company] CUSIP No. 423074103 SCHEDULE 13D Page 33 of 35 Pages TRIAN PARTNERS PARALLEL FUND II, L.P. By: Trian Partners Parallel Fund II GP, L.P., its general partner By: Trian Partners Parallel Fund II General Partner, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN PARTNERS PARALLEL FUND II GP, L.P. By: Trian Partners Parallel Fund II General Partner, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN PARTNERS PARALLEL FUND II GENERAL PARTNER, LLC By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member [Signature Page of Schedule 13D - H. J. Heinz Company] CUSIP No. 423074103 SCHEDULE 13D Page 34 of 35 Pages TRIAN FUND MANAGEMENT, L.P. By: Trian Fund Management GP, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN FUND MANAGEMENT GP, LLC By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member /s/ Nelson Peltz ----------------------------------- NELSON PELTZ /s/ Peter W. May ----------------------------------- PETER W. MAY /s/ Edward P. Garden ----------------------------------- EDWARD P. GARDEN [Signature Page of Schedule 13D - H. J. Heinz Company] CUSIP No. 423074103 SCHEDULE 13D Page 35 of 35 Pages CASTLERIGG MASTER INVESTMENTS LTD. BY: SANDELL ASSET MANAGEMENT CORP., AS INVESTMENT MANAGER By: /s/ Thomas E. Sandell --------------------------------------- Name: Thomas E. Sandell Title: Chief Executive Officer SANDELL ASSET MANAGEMENT CORP. By: /s/ Thomas E. Sandell --------------------------------------- Name: Thomas E. Sandell Title: Chief Executive Officer CASTLERIGG INTERNATIONAL LIMITED BY: SANDELL ASSET MANAGEMENT CORP., AS INVESTMENT MANAGER By: /s/ Thomas E. Sandell --------------------------------------- Name: Thomas E. Sandell Title: Chief Executive Officer CASTLERIGG INTERNATIONAL HOLDINGS LIMITED BY: SANDELL ASSET MANAGEMENT CORP., AS INVESTMENT MANAGER By: /s/ Thomas E. Sandell --------------------------------------- Name: Thomas E. Sandell Title: Chief Executive Officer /s/ Thomas E. Sandell --------------------------------------------- THOMAS E. SANDELL [Signature Page of Schedule 13D - H. J. Heinz Company] SCHEDULE A DIRECTORS AND EXECUTIVE OFFICERS Set forth below are the names, position and principal occupation of each director and executive officer of each of CIL, CIHL, CMI and SAMC. Except as otherwise indicated, each such person is a citizen of the United States of America. The business address of each director and executive officer of CIL, CIHL, CMI and SAMC is c/o Sandell Asset Management Corp., 40 West 57th Street, New York, New York 10019. To the best of the Sandell Filing Persons' knowledge, except as set forth in this statement on Schedule 13D, none of the directors or executive officers of each of CIL, CIHL, CMI and SAMC owns any shares of the Issuer. CASTLERIGG INTERNATIONAL LIMITED - -------------------------------------------------------------------------------- NAME AND CITIZENSHIP POSITION PRINCIPAL OCCUPATION - -------------------------------------------------------------------------------- Thomas E. Sandell, Director Portfolio Manager of Sandell Asset Sweden Management Corp. - -------------------------------------------------------------------------------- Daniel Mignon, Belgium Director Portfolio Manager - -------------------------------------------------------------------------------- InterCaribbean Director N/A Services Ltd. - -------------------------------------------------------------------------------- CASTLERIGG INTERNATIONAL HOLDINGS LIMITED - ------------------------------------------------------------------------------- NAME AND CITIZENSHIP POSITION PRINCIPAL OCCUPATION - ------------------------------------------------------------------------------- Thomas E. Sandell, Director Portfolio Manager of Sandell Asset Sweden Management Corp. - ------------------------------------------------------------------------------- Daniel Mignon, Belgium Director Portfolio Manager - ------------------------------------------------------------------------------- InterCaribbean Director N/A Services Ltd. - ------------------------------------------------------------------------------- CASTLERIGG MASTER INVESTMENTS LTD. - ------------------------------------------------------------------------------- NAME AND CITIZENSHIP POSITION PRINCIPAL OCCUPATION - ------------------------------------------------------------------------------- Thomas E. Sandell, Director Portfolio Manager of Sandell Asset Sweden Management Corp. - ------------------------------------------------------------------------------- Daniel Mignon, Belgium Director Portfolio Manager - ------------------------------------------------------------------------------- InterCaribbean Director N/A Services Ltd. - ------------------------------------------------------------------------------- -S-A-1- SANDELL ASSET MANAGEMENT CORP. - ------------------------------------------------------------------------------- NAME AND CITIZENSHIP POSITION PRINCIPAL OCCUPATION - ------------------------------------------------------------------------------- Thomas E. Sandell, Director, CEO, Portfolio Manager of Sandell Asset Sweden Portfolio Manager Management Corp. - ------------------------------------------------------------------------------- Daniel Mignon, Belgium Director Portfolio Manager - ------------------------------------------------------------------------------- Timothy O'Brien CFO CFO of Sandell Asset Management Corp. - ------------------------------------------------------------------------------- -S-A-2- SCHEDULE B The following table sets forth all transactions with respect to the Shares effected during the past 60 days by any of the Filing Persons, inclusive of any transactions effected through 4:00 p.m., New York City time, on April 21, 2006. Except as otherwise noted, all such transactions were effected in the open market, and the table includes commissions paid in per share prices.
No. of Shares Price Per Transaction Name Date Share ($) Type - ---------------------------- ------------ ------------- ------------- ------------------ Trian Onshore 02/28/06 422,720 37.5634 * Trian Onshore 03/01/06 4,381 37.8700 Purchase ** Trian Onshore 03/01/06 5,366 37.6892 Purchase *** Trian Onshore 03/02/06 97,830 37.6065 * Trian Onshore 03/16/06 4,113 37.9400 Sale ** Trian Onshore 03/16/06 5,964 37.7201 Sale *** Trian Onshore 03/31/06 92,645 38.1874 * Trian Onshore 04/01/06 634 37.9200 Purchase ** Trian Onshore 04/01/06 1,056 37.5349 Purchase *** Trian Onshore 04/06/06 104,057 38.3933 * Trian Onshore 04/12/06 9,305 38.1233 * Trian Onshore 04/13/06 6,747 37.6780 Purchase Trian Onshore 04/17/06 66,514 37.9858 Purchase Trian Onshore 04/18/06 20,243 38.0939 Purchase Trian Onshore 04/19/06 28,919 38.2351 Purchase Trian Onshore 04/19/06 - 37.4263 **** Trian Onshore 04/20/06 2,409 38.6170 Purchase Trian Offshore 02/28/06 1,529,332 37.5634 * Trian Offshore 03/01/06 240 37.8700 Purchase ** Trian Offshore 03/01/06 288 37.6892 Purchase *** Trian Offshore 03/02/06 350,429 37.6065 * Trian Offshore 03/16/06 14,682 37.9400 Sale ** Trian Offshore 03/16/06 21,277 37.7201 Sale *** Trian Offshore 03/31/06 331,874 38.1874 * Trian Offshore 04/01/06 4,511 37.9200 Purchase ** Trian Offshore 04/01/06 7,570 37.5349 Purchase *** Trian Offshore 04/06/06 373,297 38.3933 * Trian Offshore 04/12/06 33,384 38.1233 * Trian Offshore 04/13/06 24,211 37.6780 Purchase Trian Offshore 04/17/06 238,612 37.9858 Purchase Trian Offshore 04/18/06 72,624 38.0939 Purchase Trian Offshore 04/19/06 103,747 38.2351 Purchase Trian Offshore 04/19/06 - 37.4263 **** Trian Offshore 04/20/06 8,649 38.6170 Purchase
-S-B-1-
Trian Offshore (Non-ERISA) 02/28/06 122,492 37.5634 * Trian Offshore (Non-ERISA) 03/01/06 1,476 37.8700 Sale ** Trian Offshore (Non-ERISA) 03/01/06 1,806 37.6892 Sale *** Trian Offshore (Non-ERISA) 03/02/06 27,730 37.6065 * Trian Offshore (Non-ERISA) 03/16/06 1,177 37.9400 Sale** Trian Offshore (Non-ERISA) 03/16/06 1,705 37.7201 Sale *** Trian Offshore (Non-ERISA) 03/31/06 26,258 38.1874 * Trian Offshore (Non-ERISA) 04/01/06 1,468 37.9200 Sale ** Trian Offshore (Non-ERISA) 04/01/06 2,440 37.5349 Sale *** Trian Offshore (Non-ERISA) 04/06/06 29,093 38.3933 * Trian Offshore (Non-ERISA) 04/12/06 2,601 38.1233 * Trian Offshore (Non-ERISA) 04/13/06 1,886 37.6780 Purchase Trian Offshore (Non-ERISA) 04/17/06 18,598 37.9858 Purchase Trian Offshore (Non-ERISA) 04/18/06 5,660 38.0939 Purchase Trian Offshore (Non-ERISA) 04/19/06 8,086 38.2351 Purchase Trian Offshore (Non-ERISA) 04/19/06 - 37.4263 **** Trian Offshore (Non-ERISA) 04/20/06 673 38.6170 Purchase Parallel Fund I 02/28/06 100,519 37.5634 * Parallel Fund I 03/01/06 1,100 37.8700 Sale ** Parallel Fund I 03/01/06 1,346 37.6892 Sale *** Parallel Fund I 03/02/06 22,780 37.6065 * Parallel Fund I 03/16/06 960 37.9400 Sale ** Parallel Fund I 03/16/06 1,392 37.7201 Sale *** Parallel Fund I 03/31/06 21,572 38.1874 * Parallel Fund I 04/01/06 1,216 37.9200 Sale ** Parallel Fund I 04/01/06 2,019 37.5349 Sale *** Parallel Fund I 04/06/06 23,899 38.3933 * Parallel Fund I 04/12/06 2,137 38.1233 * Parallel Fund I 04/13/06 1,549 37.6780 Purchase Parallel Fund I 04/17/06 15,278 37.9858 Purchase Parallel Fund I 04/18/06 4,649 38.0939 Purchase Parallel Fund I 04/19/06 6,642 38.2351 Purchase Parallel Fund I 04/19/06 - 37.4263 **** Parallel Fund I 04/20/06 553 38.6170 Purchase Parallel Fund II 03/16/06 22,683 37.9400 Purchase ** Parallel Fund II 03/16/06 32,874 37.7201 Purchase *** Parallel Fund II 03/31/06 4,880 38.1874 * Parallel Fund II 04/01/06 223 37.9200 Sale ** Parallel Fund II 04/01/06 449 37.5349 Sale *** Parallel Fund II 04/06/06 5,420 38.3933 * Parallel Fund II 04/12/06 484 38.1233 *
-S-B-2-
Parallel Fund II 04/13/06 351 37.6780 Purchase Parallel Fund II 04/17/06 3,458 37.9858 Purchase Parallel Fund II 04/18/06 1,052 38.0939 Purchase Parallel Fund II 04/19/06 1,503 38.2351 Purchase Parallel Fund II 04/19/06 - 37.4263 **** Parallel Fund II 04/20/06 125 38.6170 Purchase Separate Account 02/28/06 185,955 37.5634 * Separate Account 03/01/06 2,045 37.8700 Sale ** Separate Account 03/01/06 2,502 37.6892 Sale *** Separate Account 03/02/06 42,141 37.6065 * Separate Account 03/16/06 1,751 37.9400 Sale ** Separate Account 03/16/06 2,536 37.7201 Sale *** Separate Account 03/31/06 39,912 38.1874 * Separate Account 04/01/06 2,238 37.9200 Sale ** Separate Account 04/01/06 3,718 37.5349 Sale *** Separate Account 04/06/06 44,222 38.3933 * Separate Account 04/12/06 3,954 38.1233 * Separate Account 04/13/06 2,867 37.6780 Purchase Separate Account 04/17/06 28,269 37.9858 Purchase Separate Account 04/18/06 8,603 38.0939 Purchase Separate Account 04/19/06 12,290 38.2351 Purchase Separate Account 04/19/06 - 37.4263 **** Separate Account 04/20/06 1,024 38.6170 Purchase Trian SPV 02/28/06 2,033,302 37.5634 * Trian SPV 03/02/06 465,830 37.6065 * Trian SPV 03/31/06 445,359 38.1874 * Trian SPV 04/06/06 499,482 38.3933 * Trian SPV 04/12/06 44,665 38.1233 * Trian SPV 04/13/06 32,389 37.6780 Purchase Trian SPV 04/17/06 319,271 37.9858 Purchase Trian SPV 04/18/06 97,169 38.0939 Purchase Trian SPV 04/19/06 138,813 38.2351 Purchase Trian SPV 04/19/06 - 37.4263 **** Trian SPV 04/20/06 11,567 38.6170 Purchase CMI 02/28/06 1,883,280 37.5634 * CMI 03/02/06 431,460 37.6065 * CMI 03/31/06 412,500 38.1874 * CMI 04/06/06 462,630 38.3933 * CMI 04/12/06 41,370 38.1233 * CMI 04/13/06 30,000 37.6668 Purchase CMI 04/17/06 293,900 37.9710 Purchase
-S-B-3-
CMI 04/18/06 90,000 38.0812 Purchase CMI 04/19/06 - 37.4263 ****
- --------------------------- * On the various dates set forth above, the named Holders entered into a series of privately negotiated back-to-back call and put transactions (the "Options") with Morgan Stanley & Co. International Limited (the "Counterparty"), through which they acquired an economic interest in the indicated Shares. Simultaneously with the purchase of each call option, the named Holder also sold a put option to the Counterparty for the same number of Shares pursuant to which, if on June 1, 2006 the exercise price per Share of the call option were greater than the closing price of the Shares on June 1, 2006 (the "Closing Price"), the Counterparty would have been entitled to cause the named Holder to, at such Holder's election, either (i) pay the Counterparty an amount in cash equal to the product of (a) the excess of the exercise price per Share pursuant to such option (as set forth above under Price Per Share) (the "Exercise Price") over the Closing Price and (b) the number of Shares set forth above or (ii) acquire from the Counterparty the number of Shares set forth above at the Exercise Price. As described below, all of the Options were exercised prior to June 1, 2006. Consequently, under the terms of the Options, the named Holders received a cash rebate from the Counterparty for the period from the day after the date on which the Option was exercised up to and including June 1, 2006 calculated using an annual rate of the Federal Funds Rate plus 0.30%. ** Represent private transactions pursuant to which the named Holders bought from or sold to each other, as indicated above, the number of Shares set forth above at a price equal to the closing price of the Shares on the trading day immediately preceding the date of the transaction. These transactions were entered into solely for the purpose of rebalancing positions among the named Holders. *** Represent private transactions pursuant to which the named Holders bought from or sold to each other, as indicated above, a portion of their interests in the Options covering the number of shares set forth above. The purchase price was equal to the fair value of the purchased interests as of the close of business on the trading day immediately preceding the date of the transaction. These transactions were entered into solely for the purpose of rebalancing positions among the named Holders. **** On April 19, 2006, the named Holders exercised all of their Options, and thereby acquired outright ownership of the 12,314,800 Shares covered by the Options, for an aggregate exercise price of $460,897,399.24. -S-B-4- EX-99 2 exhibit1.txt EXHIBIT 1 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the undersigned agree to the joint filing on behalf of each of them of a statement on Schedule 13D, including all amendments thereto, with respect to the common stock, par value $.25 per share, of H. J. Heinz Company, and further agree that this Joint Filing Agreement shall be included as an exhibit to the first such joint filing and may, as required, be included as an exhibit to subsequent amendments thereto. Each of the undersigned agrees that each party hereto is responsible for the timely filing of such Schedule 13D and any and all amendments thereto, and for the completeness and accuracy of the information concerning such party contained therein; provided that no party is responsible for the completeness and accuracy of the information concerning any other party unless such party knows or has reason to believe that such information is inaccurate. This Joint Filing Agreement may be executed in any number of counterparts, all of which together shall constitute one and the same instrument. Dated: April 24, 2006 [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, the undersigned hereby execute this Joint Filing Agreement as of the date first written above. TRIAN PARTNERS GP, L.P. By: Trian Partners General Partner, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN PARTNERS GENERAL PARTNER, LLC By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN PARTNERS, L.P. By: Trian Partners GP, L.P., its general partner By: Trian Partners General Partner, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN PARTNERS MASTER FUND, L.P. By: Trian Partners GP, L.P., its general partner By: Trian Partners General Partner, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member [Signature Page of Joint Filing Agreement - H. J. Heinz Company] TRIAN PARTNERS MASTER FUND (NON-ERISA), L.P. By: Trian Partners GP, L.P., its general partner By: Trian Partners General Partner, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN SPV (SUB) I, L.P. By: Trian Partners GP, L.P., its general partner By: Trian Partners General Partner, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN PARTNERS PARALLEL FUND I, L.P. By: Trian Partners Parallel Fund I General Partner, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN PARTNERS PARALLEL FUND I GENERAL PARTNER, LLC By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member [Signature Page of Joint Filing Agreement - H. J. Heinz Company] TRIAN PARTNERS PARALLEL FUND II, L.P. By: Trian Partners Parallel Fund II GP, L.P., its general partner By: Trian Partners Parallel Fund II General Partner, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN PARTNERS PARALLEL FUND II GP, L.P. By: Trian Partners Parallel Fund II General Partner, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN PARTNERS PARALLEL FUND II GENERAL PARTNER, LLC By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member [Signature Page of Joint Filing Agreement - H. J. Heinz Company] TRIAN FUND MANAGEMENT, L.P. By: Trian Fund Management GP, LLC, its general partner By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member TRIAN FUND MANAGEMENT GP, LLC By: /s/ Nelson Peltz ----------------------------------- Name: Nelson Peltz Title: Member /s/ Nelson Peltz ----------------------------------------- NELSON PELTZ /s/ Peter W. May ----------------------------------------- PETER W. MAY /s/ Edward P. Garden ----------------------------------------- EDWARD P. GARDEN [Signature Page of Joint Filing Agreement - H. J. Heinz Company] CASTLERIGG MASTER INVESTMENTS LTD. BY: SANDELL ASSET MANAGEMENT CORP., AS INVESTMENT MANAGER By: /s/ Thomas E. Sandell ----------------------------------- Name: Thomas E. Sandell Title: Chief Executive Officer SANDELL ASSET MANAGEMENT CORP. By: /s/ Thomas E. Sandell ----------------------------------- Name: Thomas E. Sandell Title: Chief Executive Officer CASTLERIGG INTERNATIONAL LIMITED BY: SANDELL ASSET MANAGEMENT CORP., AS INVESTMENT MANAGER By: /s/ Thomas E. Sandell ----------------------------------- Name: Thomas E. Sandell Title: Chief Executive Officer CASTLERIGG INTERNATIONAL HOLDINGS LIMITED BY: SANDELL ASSET MANAGEMENT CORP., AS INVESTMENT MANAGER By: /s/ Thomas E. Sandell ----------------------------------- Name: Thomas E. Sandell Title: Chief Executive Officer /s/ Thomas E. Sandell ----------------------------------------- THOMAS E. SANDELL [Signature Page of Joint Filing Agreement - H. J. Heinz Company] EX-99 3 exhibit2.txt EXHIBIT 2 EXECUTION COPY AGREEMENT AGREEMENT made this 7th day of February, 2006, by and among Sandell Asset Management Corp., 40 West 57th Street, New York, NY 10019 ("Sandell"), and Trian Fund Management, L.P., 280 Park Avenue, 41st Floor, New York, NY 10017 ("Trian"), with respect to H.J. Heinz Company, a Pennsylvania corporation (the "Company"). R E C I T A L S: - - - - - - - - The Parties wish to enter into this Agreement to coordinate certain of their efforts with respect to: (i) the purchase of interests in the Company, whether through the purchase of debt or equity securities of the Company and/or options, swaps or other derivative securities or instruments relating to the Company (collectively, "Securities"); and (ii) the proposal of certain actions and/or transactions to the Company. The parties hereto agree as follows: 1. PURCHASE AND SALE OF SECURITIES. (a) The parties represent and warrant that, as of the date hereof, none of them or any of their affiliates owns any Securities. The parties agree that, without Trian's prior approval, no investment funds, managed accounts and other investment vehicles managed or advised by them or their affiliates (with respect to Sandell, the "Sandell Funds", with respect to Trian, the "Trian Funds", and collectively, the "Funds") shall in the aggregate collectively beneficially own 5% or more of the Company's common stock. (b) All Securities acquired in accordance with this Agreement having an aggregate purchase price up to $660 million shall be allocated 70% to the Trian Funds and 30% to the Sandell Funds (such percentages, the "Pro Rata Percentages"). Any purchases in excess of $660 up to $860 million shall be allocated to the Sandell Funds. Any purchases in excess of $860 million shall be allocated to the Trian Funds and the Sandell Funds in accordance with the Pro Rata Percentages. Notwithstanding the foregoing, the Pro Rata Percentages shall automatically be adjusted to reflect the actual ratio of Securities owned by the parties. All sales of Securities shall be allocated in accordance with the Pro Rata Percentages. The parties understand and agree that Trian shall have final approval with respect to the timing, amounts and prices of purchases, sales and exercises of Securities, subject to prior discussion and consultation with Sandell. Unless otherwise agreed to by the parties, all purchases, sales and exercises of Securities shall be executed solely by either Trian's or Sandell's trading desk, subject to prior discussion and consultation between the parties. At the end of each trading day, purchased Securities or proceeds from sales of Securities shall be allocated to accounts designated by the parties in accordance with the Pro Rata Percentages, with each party responsible for its allocable portion of the purchase price of any purchased Securities. 2. OTHER COORDINATED ACTIVITIES. (a) The parties understand and agree that Trian shall have final approval with respect to (i) whether to initiate any proxy contest involving the Company, and if so, all related matters including the manner and timing thereof and the nomination of individuals to serve as directors of the Company, (ii) the manner in which Securities held by the Funds are voted in connection with any matter submitted for a vote by shareholders of the Company, (iii) the manner, form, content and timing of any communications with the Company as well as any public disclosures, public statements or other third party communications relating to the Company, the Securities, this Agreement and the activities of the parties pursuant to this Agreement, including the making of any proposals regarding corporate transactions, and (iv) any decisions with respect to changing the intentions of the parties and the Funds from that previously disclosed in Item 4 of any Schedule 13D or any other regulatory filings filed by the parties and/or the Funds. Any of the foregoing actions shall be taken solely by Trian, but only after reasonable advance notice to, and a reasonable period of consultation with, Sandell. In addition, Sandell will be invited to participate in any pre-arranged meetings or teleconferences relating to the activities of the parties hereunder. Notwithstanding the foregoing, (x) Sandell shall have the right to approve in advance (such approval not to be unreasonably withheld) any disclosure proposed to be made with respect to Sandell or any of its affiliates in any public statements or regulatory filings and (y) if Sandell believes, after consultation with counsel, that it or any of its affiliates are required by applicable law to make any public announcement with respect to the Company, this Agreement and/or the activities of the parties pursuant hereto, it shall be entitled to make such disclosure provided that it gives Trian reasonable advance notice and a reasonable period of consultation before making any such disclosure. (b) In the event Trian or any of its affiliates makes an offer to purchase all of the outstanding common stock of the Company, Trian shall offer Sandell the opportunity to participate in such offer. (c) For value received, Sandell hereby appoints and constitutes Trian and/or its designees, with full power of substitution, during the term of this Agreement, as its proxy, including, without limitation, for the purpose of enforcing the provisions set forth in clause (a) above relating to the voting of Securities, in respect of all Securities now or hereafter owned by Sandell and/or the Sandell Funds, to the full extent of their rights with respect to such Securities. This proxy is coupled with an interest, is irrevocable and shall survive, and shall not be affected by, the subsequent bankruptcy or insolvency of Sandell or any of the Sandell Funds. 3. EXPENSES; INDEMNIFICATION; CONTRIBUTION. (a) Except as otherwise set forth herein, Sandell shall pay 75% of all expenses incurred by the parties in furtherance of the activities engaged in by the parties pursuant to this Agreement (collectively, "Expenses"). Notwithstanding the foregoing, all Expenses relating to Indemnifiable Litigation (as defined below), all filing fees required to be paid by the parties under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and commissions and other expenses incurred in connection with the purchase or sale of securities shall be borne by the parties in accordance with the Pro Rata Percentages. Each of the parties will promptly upon request reimburse the other party for their respective portion of any Expenses paid or advanced by such other party. Upon request, the party seeking reimbursement hereunder shall provide the other party with reasonable documentation evidencing its Expenses. (b) Each of the parties agrees to indemnify and hold harmless the other party and its affiliates in accordance with their respective Pro Rata Percentage from and against any and all expense, liability and loss (including attorneys' fees, judgments, fines and amounts paid or to be paid in any settlement by a party hereto and approved in advance by the other, such approval not to be unreasonably withheld) actually incurred or suffered by such other party or any of its affiliates in connection with any threatened, pending or contemplated investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (collectively, "Indemnifiable Litigation"), to which such party or any of its affiliates is made a party or is threatened to be made a party by reason of any action or inaction taken or omitted in connection with this Agreement and the ownership of Securities. The parties shall jointly cooperate in the defense of any Indemnifiable Litigation. Notwithstanding any of the foregoing, no party or any of its affiliates shall be entitled to any indemnification hereunder for any such expense, liability or loss arising out of such person's fraud, willful misconduct, gross negligence, bad faith or violation of federal or state securities laws. (c) In the event that a party's or its affiliates' right to indemnification as provided above is for any reason not available or insufficient to hold such party or its affiliates harmless to the extent provided herein, each of the parties agrees to contribute to the aggregate expense, liability or loss (including legal or other expenses reasonably incurred in connection with investigating or defending the same) involved in proportion to their respective Pro Rata Percentage ("Contribution Expense"). Each of the parties agrees that it would not be just and equitable if contribution were determined by any other method of allocation. Notwithstanding the foregoing, a party or its affiliates shall not be entitled to contribution for any Contribution Expense arising out of such party's or its affiliates' fraud, willful misconduct, gross negligence, bad faith or violation of federal or state securities laws. 4. REGULATORY REPORTING. In the event that any transaction entered into pursuant to this Agreement gives rise to any requirement that a party hereto and/or any of its affiliates file any schedule or report pursuant to the Securities Exchange Act of 1934, as amended (excluding filings on Form 13F), the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, or any other federal, state or regulatory requirement, such person(s) shall, subject to the provisions of this Section 4, make the required filings within the time period required. If any such schedule or report may be filed jointly by the parties and/or their respective affiliates, the parties shall file jointly. Trian shall prepare and timely file all such joint filings; PROVIDED that the content thereof relating to Sandell or any of its affiliates shall be reasonably satisfactory to Sandell, who shall be given the opportunity to review and comment on each such filing a reasonable period of time before such filing is made. In the event that either party or any of its affiliates is required after the date hereof to file a Schedule 13F that includes the name of the Company and, at the time of any such filing, the parties have not publicly announced their investment in the Company, then the filing party or parties shall use its or their reasonable best efforts to seek confidential treatment with respect to the name of the Company for purposes of such filing. Each party will cooperate with the other, including by providing all necessary information, in order to facilitate the timely and accurate filing of all joint and individual filings. In the case of any joint filings, the parties shall share all costs and expenses associated with such filings in accordance with the Pro Rata Percentages. Except as otherwise set forth herein, all costs and expenses associated with individual filings shall be borne by the filing party. 5. TERMINATION. This Agreement shall terminate at the conclusion of the next annual meeting of the Company's shareholders (including any adjoumments or postponements thereof); PROVIDED, HOWEVER, that the provisions set forth in Section 3 hereof and the governing law provisions set forth in Section 6(a) hereof shall survive any termination of this Agreement. 6. MISCELLANEOUS. (a) The terms and provisions of this Agreement may not be amended, waived or modified except by a writing signed by all of the parties hereto. Notwithstanding the foregoing, Trian may at any time amend this Agreement solely to join additional parties reasonably acceptable to Sandell, provided that any such additional parties shall be subject to the same terms as Sandell and the parties mutually agree to revised Pro Rata Percentages. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. This Agreement may not be assigned by either party without the prior written consent of the other party. This Agreement may be executed in counterparts. This Agreement, together with the Confidentiality Agreement dated February 5, 2006 between the parties hereto, represents the entire agreement between the parties hereto, and supersedes all prior agreements, arrangements or understandings, with respect to the subject matter hereof. (b) Each party represents and warrants that neither it nor any of its Funds are in possession of any material non-public information regarding the Company, whether received from the Company or any third party, and that in no event shall a party make available to the other party any such information that it may in the future obtain unless expressly authorized by such other party to do so. IN WITNESS WHEREOF, the undersigned have entered into this Agreement as of the day and year first above written. TRIAN FUND MANAGEMENT, L.P. SANDELL ASSET MANAGEMENT CORP. By: Trian Fund Management GP, LLC, its General Partner By: /s/ Edward P. Garden By: /s/ Thomas Sandell ---------------------------------- ---------------------------------- Edward P. Garden Thomas Sandell Member CEO EX-99 4 exhibit3.txt EXHIBIT 3 AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF TRIAN SPV (SUB) I, L.P. DATED AS OF MARCH 1, 2006
TABLE OF CONTENTS PAGE ARTICLE I GENERAL PROVISIONS.........................................................1 Sec. 1.01 Formation of the Partnership..........................................1 Sec. 1.02 Partnership Name and Address..........................................2 Sec. 1.03 Fiscal Year...........................................................2 Sec. 1.04 Liability of Partners.................................................2 Sec. 1.05 Purposes of the Partnership...........................................2 Sec. 1.06 Assignability of Interest.............................................3 ARTICLE II MANAGEMENT OF THE PARTNERSHIP.............................................3 Sec. 2.01 Management Generally..................................................3 Sec. 2.02 Authority of the Managing General Partner.............................3 Sec. 2.03 Reliance by Third Parties.............................................7 Sec. 2.04 Activity of the General Partners......................................7 Sec. 2.05 Exculpation...........................................................8 Sec. 2.06 Indemnification.......................................................9 Sec. 2.07 Management Fee; Payment of Certain Costs and Expenses................10 Sec. 2.08 Principal Transactions...............................................11 ARTICLE III CAPITAL ACCOUNTS OF PARTNERS AND OPERATION THEREOF......................11 Sec. 3.01 Definitions..........................................................11 Sec. 3.02 Capital Contributions................................................12 Sec. 3.03 Capital Accounts.....................................................12 Sec. 3.04 Partnership Percentages..............................................13 Sec. 3.05 Allocation of Net Capital Appreciation or Net Capital Depreciation.........................................................13 Sec. 3.06 Amendment of Incentive Allocation....................................16 Sec. 3.07 Valuation of Assets..................................................16 Sec. 3.08 Liabilities..........................................................17 Sec. 3.09 Allocation for Tax Purposes..........................................17 Sec. 3.10 Determination by the Managing General Partner of Certain Matters..............................................................18 Sec. 3.11 Adjustments to Take Account of Certain Events........................18 ARTICLE IV ADMISSION OF NEW PARTNERS................................................18 Sec. 4.01 New Partners.........................................................18 ARTICLE V WITHDRAWALS AND DISTRIBUTIONS OF CAPITAL..................................19 Sec. 5.01 Withdrawal of Initial Limited Partner................................19 Sec. 5.02 Withdrawals and Distributions in General.............................19 -i- Sec. 5.03 Withdrawals..........................................................19 Sec. 5.04 Required Withdrawals.................................................20 Sec. 5.05 Death, Disability, etc. of Limited Partners..........................20 Sec. 5.06 Distributions........................................................21 Sec. 5.07 Effective Date of Withdrawal.........................................22 Sec. 5.08 Limitations on Withdrawal of Capital Account.........................22 ARTICLE VI DURATION AND DISSOLUTION OF THE PARTNERSHIP..............................23 Sec. 6.01 Duration.............................................................23 Sec. 6.02 Dissolution..........................................................23 ARTICLE VII TAX RETURNS; REPORTS TO PARTNERS........................................24 Sec. 7.01 Independent Auditors.................................................24 Sec. 7.02 Filing of Tax Returns................................................24 Sec. 7.03 Tax Matters Partner..................................................24 Sec. 7.04 Reports to Current Partners..........................................24 Sec. 7.05 Reports to Partners and Former Partners..............................25 Sec. 7.06 Partner Tax Basis....................................................25 ARTICLE VIII INVESTOR COMMITTEE.....................................................25 Sec. 8.01 Investor Committee...................................................25 ARTICLE IX MISCELLANEOUS............................................................26 Sec. 9.01 General..............................................................26 Sec. 9.02 Power of Attorney....................................................26 Sec. 9.03 Amendments to Partnership Agreement..................................26 Sec. 9.04 Non-Voting Interests of Registered Fund Limited Partners.............27 Sec. 9.05 Choice of Law........................................................27 Sec. 9.06 Consent to Jurisdiction..............................................28 Sec. 9.07 Tax Elections........................................................28 Sec. 9.08 No Third Party Rights................................................28 Sec. 9.09 Confidentiality......................................................28 Sec. 9.10 Notices..............................................................29 Sec. 9.11 Goodwill.............................................................29 Sec. 9.12 Headings.............................................................29 Sec. 9.13 Pronouns.............................................................29
-ii- AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT OF TRIAN SPV (SUB) I, L.P. Dated as of March 1, 2006 This Amended and Restated Limited Partnership Agreement dated on the date first above written (the "Agreement") among the undersigned (herein called the "Partners", which term shall include any persons hereafter admitted to Trian SPV (SUB) I, L.P. (the "Partnership") pursuant to Article IV of this Agreement and shall exclude any persons who cease to be Partners pursuant to Article V of this Agreement) shall govern the Partnership. WHEREAS, the Administrative General Partner (as defined in Section 1.01) and Ian Gobin, as the initial limited partner (the "Initial Limited Partner"), heretofore entered into an Initial Exempted Limited Partnership Agreement dated February 28, 2006 (the "Initial Partnership Agreement"), and have formed and registered the Partnership as an exempted limited partnership pursuant to the Exempted Limited Partnership Law (2003 Revision) of the Cayman Islands (the "Law"); and WHEREAS, additional limited partners wish to be admitted as Limited Partners (as defined in Section 1.04) of the Partnership and the parties hereto desire to continue a limited partnership under the provisions of the Law and to set forth the terms pursuant to which the Partnership shall be governed. NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I General Provisions Sec. 1.01 FORMATION OF THE PARTNERSHIP. The Partnership was formed and registered as an exempted limited partnership by the execution of the Initial Partnership Agreement and the filing of a Section 9 Statement with the Registrar of Exempted Limited Partnerships of the Cayman Islands on February 28, 2006. Trian Partners Cayman, Ltd., a Cayman Islands exempt company serving as the administrative general partner of the Partnership (the "Administrative General Partner"), shall cause to be executed, filed and recorded, with the proper offices in the Cayman Islands, such certificates, and shall cause to be made such publications, as shall be required by the Law. For so long as the interests in the Partnership are held by more than one Limited Partner and no more than fifteen Limited Partners, the majority in number of these Limited Partners shall be capable of appointing or removing the General Partners (as defined in Section 1.04) for the purpose of ensuring that the Partnership is not required to register as a mutual fund under the Mutual Funds Law (2003) Revision of the Cayman Islands until such time as there are more than fifteen Limited Partners. Sec. 1.02 PARTNERSHIP NAME AND ADDRESS. The name of the Partnership is Trian SPV (Sub) I, L.P. Its registered office is located at the offices of Goldman Sachs (Cayman) Trust, Limited, P.O. Box 896GT, Harbour Centre, 2nd Floor, George Town, Grand Cayman, Cayman Islands, or at such other location in the Cayman Islands as the Managing General Partner in the future may designate. The Administrative General Partner shall promptly notify the Limited Partners of any change in the Partnership's address. Sec. 1.03 FISCAL YEAR. The fiscal year of the Partnership (herein called the "fiscal year") shall end on December 31 unless another date is required under the United States Internal Revenue Code of 1986, as amended, for Federal tax purposes. Sec. 1.04 LIABILITY OF PARTNERS. The names of all of the Partners and the amounts of their respective contributions to the Partnership (herein called the "Capital Contributions") are set forth in the books and records of the Partnership. Trian Partners GP, L.P., a Delaware limited partnership, shall be the managing general partner (herein called the "Managing General Partner" and, together with the Administrative General Partner, the "General Partners" or each, a "General Partner"). The General Partners shall, in the event that the assets of the Partnership are inadequate, be liable for all debts and obligations of the Partnership. The Partners designated in the books and records of the Partnership as limited partners (herein called the "Limited Partners"), and former Limited Partners (including the Initial Limited Partner), shall have no liability for any debt or obligation of the Partnership except to the extent of their respective interests in the Partnership, nor any obligation to contribute or make payments to the Partnership, except as provided by the Law or pursuant to the terms of this Agreement. As used in this Section 1.04, the terms "interests in the Partnership" and "interest in the Partnership" shall mean, with respect to any fiscal year (or relevant portion thereof) and with respect to each Partner (or former Partner), the Capital Account(s) (as defined in Section 3.03) that such Partner (or former Partner) would have received (or in fact did receive) pursuant to the terms and provisions of Article V upon withdrawal from the Partnership as of the end of such fiscal year (or relevant portion thereof). As used in this Agreement, the terms "former Limited Partner" and "former Partner" refer to such persons or entities as hereafter from time to time cease to be a Limited Partner or Partner, respectively, pursuant to the terms and provisions of this Agreement. Sec. 1.05 PURPOSES OF THE PARTNERSHIP. The Partnership is established for the purposes of engaging in any and all transactions permitted under applicable law including, without limitation, investing in Securities (as hereinafter defined) and engaging in all activities and transactions as the Managing General Partner may deem necessary or advisable in connection therewith, including, without limitation: (a) to invest, on margin or otherwise, in (i) securities and other financial instruments issued by or otherwise relating to a single "large-cap" consumer products company to be identified by the General Partner (such company, the "Company"), including, without - 2 - limitation: common stock; preferred stock; shares of beneficial interest; bonds and other fixed income investments, notes and debentures (whether subordinated, convertible or otherwise), and (ii) derivative products relating to securities issued by the Company, including, without limitation: swaps, options, warrants, repurchase agreements, reverse repurchase agreements, caps, collars, floors and forward rate agreements (all such items in clauses (i) and (ii) being called herein a "Security" or "Securities"), and to sell Securities short and cover such sales; (b) to engage in such other lawful transactions as the Managing General Partner may from time to time determine in furtherance of the purpose set forth in Section 1.05(a); and (c) to do such other acts as is necessary or advisable in connection with the maintenance and administration of the Partnership. Sec. 1.06 ASSIGNABILITY OF INTEREST. A Partner may not pledge, transfer or assign its interest in the Partnership other than by operation of law pursuant to the death, bankruptcy or dissolution of such Partner, or with the consent of the Managing General Partner, which may be withheld in its sole discretion. In no event, however, will any transferee or assignee be admitted as a Partner without the consent of the Managing General Partner, which may be withheld in its sole discretion. Any attempted pledge, transfer or assignment not made in accordance with this Section 1.06 shall be void. ARTICLE II Management of the Partnership Sec. 2.01 MANAGEMENT GENERALLY. The management of the Partnership shall be vested exclusively in the Managing General Partner. Except as authorized by the Managing General Partner, neither the Administrative General Partner nor the Limited Partners shall have any part in the management of the Partnership, nor shall they have any authority or right to act on behalf of the Partnership in connection with any matter. Sec. 2.02 AUTHORITY OF THE MANAGING GENERAL PARTNER. (a) The Managing General Partner shall oversee the administration of the Partnership, and shall have the power to: (i) communicate with the Partners, including furnishing reports as set forth in Article VII; (ii) maintain the principal books and records of the Partnership; (iii) cause the preparation of all necessary tax returns of the Partnership; (iv) conduct meetings of the Partners; - 3 - (v) provide administrative, accounting and secretarial services to the Partnership; (vi) bring and defend actions before any governmental, administrative or other regulatory agency, body or commission, for and on behalf of the Partnership; and (vii) do all things and discharge all duties required of, or imposed on, a general partner by law, and do any other things and discharge any other duties required of or imposed on a general partner by law. (b) The Managing General Partner shall have the power on behalf and in the name of the Partnership to carry out any and all of the objects and purposes of the Partnership set forth in Section 1.05, and to perform all acts and enter into and perform all contracts and other undertakings that it may deem necessary or advisable or incidental thereto, including, without limitation, the power to: (i) provide research and analysis and direct the formulation of investment policies and strategies for the Partnership; (ii) acquire a long position or a short position with respect to any Security and make purchases or sales increasing, decreasing or liquidating such position or changing from a long position to a short position or from a short position to a long position, without any limitation as to the frequency of the fluctuation in such positions or as to the frequency of the changes in the nature of such positions; (iii) purchase Securities and hold them for investment, and initiate tender offers and proxy contests and other shareholder actions with respect to Securities, and take other actions to influence the management of issuers of Securities; (iv) enter into contracts for or in connection with investments in Securities; (v) invest in other pooled investment vehicles for cash management purposes, which investments shall be subject in each case to the terms and conditions of the respective governing document for such vehicle; (vi) possess, transfer, mortgage, pledge or otherwise deal in, and exercise all rights, powers, privileges and other incidents of ownership or possession with respect to, Securities and other property and funds held or owned by the Partnership; (vii) lend, either with or without security, any Securities, funds or other properties of the Partnership, including by entering into reverse repurchase agreements, and, from time to time, without limit as to the amount, borrow or raise funds, including by entering into repurchase agreements, and secure the payment of obligations of the Partnership by mortgage upon, or pledge or hypothecation of, all or any part of the property of the Partnership; - 4 - (viii) open, maintain and close accounts, including margin and custodial accounts, with brokers, including brokers affiliated with the General Partners, which power shall include the authority to issue all instructions and authorizations to brokers regarding the Securities and/or money therein; to pay, or authorize the payment and reimbursement of, brokerage commissions that may be in excess of the lowest rates available that are paid to brokers who execute transactions for the account of the Partnership and who (i) supply, or pay for (or rebate a portion of the Partnership's brokerage commissions to the Partnership for payment of) the cost of, brokerage, research or execution services utilized by the Partnership or the Other Accounts (as defined in (xi) below) and/or (ii) pay for (or rebate a portion of the Partnership's brokerage commissions for the payment of) obligations of the Partnership (as provided in Section 2.08 hereof) or the Partnership's share of such obligations (such as computer facilities and the cost of an accounting software package), PROVIDED that the Partnership does not pay rates of commission in excess of what is competitively available from comparable brokerage firms for comparable services, taking into account various factors, including commission rates, reliability, financial responsibility, strength of the broker and ability of the broker to efficiently execute transactions, the broker's facilities, and the broker's provision or payment of the costs of research and other services or property that are of benefit to the Partnership, the Management Company (as defined in (xiv) below) and the Other Accounts; (ix) open, maintain and close accounts, including custodial accounts, with banks, including banks located outside the United States, and draw checks or other orders for the payment of monies; (x) combine purchase or sale orders on behalf of the Partnership with orders for the General Partners, the Management Company or their respective Affiliates (as defined in Section 2.04) or other accounts to whom the General Partners or any of their Affiliates provides investment services ("Other Accounts") and allocate the Securities or other assets so purchased or sold, on an average price basis, among such accounts; (xi) enter into arrangements with brokers to open "average price" accounts wherein orders placed during a trading day are placed on behalf of the Partnership and Other Accounts and are allocated among such accounts using an average price; (xii) organize one or more corporations or other entities formed to hold record title, as nominee for the Partnership (whether alone or together with the Other Accounts), to Securities or funds of the Partnership; (xiii) organize one or more direct or indirect subsidiary entities; (xiv) retain Trian Fund Management, L.P. (the "Management Company") to provide certain management and administrative services to the Partnership and to cause the Partnership to compensate the Management Company for such services; - 5 - PROVIDED, HOWEVER, management, control and conduct of the activities of the Partnership shall remain the responsibility of the Managing General Partner; (xv) retain any other persons, firms or entities selected by the Managing General Partner to provide certain management and administrative services to the Partnership and to cause the Partnership to compensate such other persons, firms or entities for such services; PROVIDED, HOWEVER, management, control and conduct of the activities of the Partnership shall remain the responsibility of the Managing General Partner; (xvi) retain Goldman Sachs (Cayman) Trust, Limited or other persons, firms or entities selected by the Managing General Partner to provide certain management and administrative services to the Partnership (Goldman Sachs (Cayman) Trust, Limited or any such other persons, firm or entity providing such services from time to time is herein called the "Administrator") and to cause the Partnership to compensate the Administrator for such services; PROVIDED, HOWEVER, management, control and conduct of the activities of the Partnership shall remain the responsibility of the Managing General Partner; (xvii) cause the Partnership to engage in agency, agency cross and principal transactions with Affiliates to the extent permitted by applicable securities laws; PROVIDED, HOWEVER, that, to the extent required by applicable law, in no event shall the Partnership engage in a principal transaction except pursuant to Section 2.08; (xviii) maintain for the conduct of the Partnership's affairs one or more offices and in connection therewith rent or acquire office space, and do such other acts as the Managing General Partner may deem necessary or advisable in connection with the maintenance and administration of the Partnership; (xix) engage personnel, whether part-time or full-time, and attorneys, independent accountants or such other persons as the Managing General Partner may deem necessary or advisable; (xx) authorize any partner, employee or other agent of the General Partners or agent or employee of the Partnership to act for and on behalf of the Partnership in all matters incidental to the foregoing; (xxi) do any and all acts on behalf of the Partnership as it may deem necessary or advisable in connection with the maintenance and administration of the Partnership, and exercise all rights of the Partnership, with respect to its interest in any person, including, without limitation, the voting of Securities, participation in arrangements with creditors, the institution and settlement or compromise of suits and administrative proceedings and other like or similar matters; and (xxii) delegate such of its duties and functions as it may deem appropriate to the Administrative General Partner or any other persons. - 6 - Sec. 2.03 RELIANCE BY THIRD PARTIES. Persons dealing with the Partnership are entitled to rely conclusively upon the certificate of a General Partner, to the effect that it is then acting as a General Partner, and upon the power and authority of the General Partners as herein set forth. Sec. 2.04 ACTIVITY OF THE GENERAL PARTNERS. (a) The Managing General Partner shall, and shall cause the Management Company to devote, so much of their time to the affairs of the Partnership as in the judgment of the Managing General Partner the conduct of its business shall reasonably require, and none of the General Partners, the Management Company or their respective Affiliates shall be obligated to do or perform any act or thing in connection with the business of the Partnership not expressly set forth herein. Except as expressly provided in this Section 2.04, nothing contained in this Agreement, and no waivable provision of applicable law, shall be deemed to preclude the General Partners, the Management Company or their Affiliates or any shareholder, member, partner, director, officer or employee thereof (collectively, the "Management Group") from exercising investment responsibility, from engaging directly or indirectly in any other business or from directly or indirectly purchasing, selling, holding or otherwise dealing with any Securities for the account of any such other business, for their own accounts, for any of their family members or for other clients. No Limited Partner shall, by reason of being a partner in the Partnership, have any right to participate in any manner in any profits or income earned, derived by or accruing to the Management Group from the conduct of any business other than the business of the Partnership (to the extent provided herein) or from any transaction in Securities effected by any of the Management Group for any account other than that of the Partnership. (b) Trian Partners, L.P. (the "U.S. Fund"), Trian Partners Master Fund, L.P. (the "Offshore Master Fund"), Trian Partners Master Fund (Non-ERISA), L.P. (the "Non-ERISA Master Fund"), and any other investment vehicles or managed accounts formed to invest substantially in parallel with such vehicles, subject to tax and regulatory considerations ("Parallel Vehicles", collectively with the U.S. Fund, the Offshore Master Fund and the Non-ERISA Master Fund, the "Other Investors"), will make investments in Securities alongside the Partnership. Investments in Securities will be allocated amongst the Partnership and the Other Investors in amounts to be determined at the sole discretion of the Managing General Partner. (c) Notwithstanding the foregoing, with respect to investments in Securities that the Partnership and one or more of the Other Investors elect to pursue, the Limited Partners acknowledge and agree that the Affiliated Investors (as defined in Section 2.04(e)) may co-invest with the Other Investors and the Partnership, but only if such co-investment (and subsequent disposition) is at the same time and price as applies to the Other Investors and the Partnership, unless otherwise approved by the Investor Committee (as defined in Section 8.01). If multiple purchases of the same Security are made over time, Affiliated Investors may reduce or eliminate their participation in such later purchases. Additionally, if Affiliated Investors do not participate at the same percentage level in each purchase made as part of a purchase program, they will ensure that their per-security profit is not higher than that of the Other Investors and the Partnership. - 7 - (d) The Limited Partners acknowledge and agree that the Managing General Partner may cause the Partnership, either alone or together with other members of a group (including the U.S. Fund, the Offshore Master Fund, the Non-ERISA Master Fund and any Parallel Vehicles), to acquire a "control" position in the Securities of the Company, and may secure the appointment of persons selected by the Managing General Partner or other members of the group to the Company's management team or board of directors. In so doing, the Limited Partners acknowledge and agree that the Managing General Partner may acquire fiduciary duties to such company and to the other shareholders of such company; and that these fiduciary duties may compel the Managing General Partner to take actions that, while in the best interests of the Company and/or its shareholders and/or other third party constituencies, may not be in the best interests of the Limited Partners. Accordingly, the Limited Partners acknowledge and agree that the Managing General Partner may have a conflict of interest between the fiduciary duties (if any) that it owes to the Company and its shareholders and other third party constituencies under applicable law, on the one hand, and those that it owes to the Limited Partners, on the other hand. The Partnership may use entities affiliated with Deerfield & Company LLC ("Deerfield"), Triarc or the Principals to provide certain services to the Partnership. Any such arrangements will be on the terms set forth in Section 2.08. In the event that a situation that may present a conflict of interest arises, the Managing General Partner may refer such situation to the Investor Committee for a resolution. (e) Definitions: (i) "Affiliate" shall mean, with respect to any Person, any Person controlling, controlled by or under common control with, such Person; (ii) "Affiliated Investors" shall mean Nelson Peltz, Peter W. May, Edward P. Garden, the Managing General Partner and/or their respective Affiliates; (iii) "Non-Affiliated Investor" shall mean an investor who is not an Affiliate of the Managing General Partner or the Principals; (iv) "Person" shall mean any natural person, partnership, limited liability company, corporation, trust or other entity; and (v) "Principals" shall mean Nelson Peltz, Peter W. May and Edward P. Garden. Sec. 2.05 EXCULPATION. (a) None of the General Partners, any Investor Committee member, the Management Company, their respective Affiliates, and any of their respective shareholders, members, partners, directors, officers and employees (each, an "Indemnified Party" and collectively, "Indemnified Parties") shall be liable to any Partner or the Partnership for (i) any acts or omissions arising out of, related to or in connection with the Partnership or any entity in which it has an interest, any transaction or activity relating to the Partnership or any entity in which it has an interest, any investment or proposed investment made or held, or to be made or held by the Partnership, or this Agreement or any similar matter, unless such action or inaction was made in bad faith or constitutes fraud, willful misconduct or gross negligence (which "gross - 8 - negligence", whenever used herein, shall have the meaning under the laws of the State of Delaware, United States) or (ii) any act or omission of any broker or agent of any Indemnified Party, PROVIDED that the selection, engagement or retention of such broker or agent was not made by the Indemnified Party seeking exculpation in bad faith and does not constitute fraud, willful misconduct or gross negligence of the Indemnified Party seeking exculpation. Each of the Indemnified Parties may consult with counsel and accountants in respect of the Partnership's affairs and be fully protected and justified in any action or inaction that is taken in accordance with the advice or opinion of such counsel or accountants, provided that their selection of such counsel or accountants was not made by the Indemnified Party seeking exculpation in bad faith and does not constitute fraud, willful misconduct or gross negligence of the Indemnified Party seeking exculpation. (b) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 2.05 shall not be construed so as to provide for the exculpation of an Indemnified Party for any liability (including liability under U.S. Federal securities laws which, under certain circumstances, impose liability even on persons that act in good faith), to the extent (but only to the extent) that such liability may not be waived, modified or limited under applicable law, but shall be construed so as to effectuate the provisions of this Section 2.05 to the fullest extent permitted by law. Sec. 2.06 INDEMNIFICATION. (a) To the fullest extent permitted by law, the Partnership shall indemnify and hold harmless each Indemnified Party from and against any loss, cost or expense suffered or sustained by an Indemnified Party by reason of (i) any acts, omissions or alleged acts or omissions arising out of or in connection with the Partnership, or any entity in which it has an interest, any investment or proposed investment made or held, or to be made or held by the Partnership, or this Agreement or any similar matter (collectively, "Covered Acts"), including, without limitation, any judgment, award, settlement, reasonable attorneys' fees and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding, or claim, PROVIDED that such acts, omissions or alleged acts or omissions upon which such actual or threatened action, proceeding or claim are based were not made in bad faith or did not constitute fraud, willful misconduct or gross negligence by the Indemnified Party seeking indemnification, or (ii) any acts or omissions, or alleged acts or omissions, of any broker or agent of any Indemnified Party (collectively, "Covered Broker Acts"), PROVIDED that the selection, engagement or retention of such broker was not made by the Indemnified Party seeking indemnification in bad faith and does not constitute fraud, willful misconduct or gross negligence of the Indemnified Party seeking indemnification. Additionally, the Partnership (and not any Indemnified Party) will be responsible for any losses resulting from trading errors and similar human errors, absent bad faith, willful misconduct or gross negligence. The Partnership shall advance to any Indemnified Party reasonable attorneys' fees and other costs and expenses incurred in connection with the defense of any action or proceeding that arises out of any Covered Act or any Covered Broker Act whether or not the provisos of (i) or (ii) apply. In the event that such an advance is made by the Partnership, the Indemnified Party shall agree to reimburse the Partnership for such fees, costs and expenses to the extent that it shall be finally determined by non-appealable order of a court of competent jurisdiction that it was not entitled - 9 - to indemnification under this Section 2.06. The foregoing provisions shall survive the termination of this Agreement. (b) Notwithstanding any of the foregoing to the contrary, the provisions of this Section 2.06 shall not be construed so as to provide for the indemnification of an Indemnified Party for any liability (including liability under Federal securities laws which, under certain circumstances, impose liability even on persons that act in good faith) to the extent (but only to the extent) that such indemnification would be in violation of applicable law, but shall be construed so as to effectuate the provisions of this Section 2.06 to the fullest extent permitted by law. Sec. 2.07 MANAGEMENT FEE; PAYMENT OF CERTAIN COSTS AND EXPENSES. (a) Starting on April 1, 2006, the Partnership will pay a quarterly management fee on the first day of each quarter (the "Management Fee") to the Management Company of such percentage as it may agree in respect of each class of Limited Partner that it may designate of the beginning Capital Account (as defined in Section 3.03) of each Limited Partner in such class for the quarter. A PRO RATA portion of the quarterly Management Fee will be paid out of any capital contributions made by new or existing Limited Partners to the Partnership on any date that does not fall on the first day of a fiscal quarter. Such fee will be paid upon contribution of the funds to the Partnership. In the case of a withdrawal by a Limited Partner other than as of the last day of a quarter, a PRO RATA portion of the Management Fee (based on the actual number of days remaining in such partial quarter) will be repaid by the Management Company to the Partnership and distributed to the withdrawing Limited Partner. (b) The General Partner's capital account will not be debited with any Management Fee. The Management Company may, in its sole discretion, waive, reduce or calculate differently the Management Fee in respect of direct and indirect holdings of Affiliated Investors or in respect of any other Limited Partner. (c) In consideration of the Management Fees, the Management Company will bear the administrative expenses of the Partnership, including costs and expenses related to salaries, employee benefits and bonuses of employees, occupancy expenses and accounting expenses (other than accounting expenses relating to investments or prospective investments and audit and tax return preparation fees). (d) The Partnership will bear its own expenses including, but not limited to, expenses relating to the cost of purchasing investments (e.g., brokerage commissions and trading costs), fees of the Administrator (or to the extent any services typically provided by an administrator are provided by the Management Company, the Managing General Partner or any of their respective employees or affiliates, the cost of such services in amounts not to exceed those typically paid to administrators engaged to perform such services as reasonably determined by the Managing General Partner in good faith), organizational expenses, expenses relating to the offer and sale of limited partnership interests in the Partnership, financing fees, prime brokerage fees, filing fees, entity-level taxes, registration fees and similar fees, audit and tax return preparation fees, fees in respect of consulting, custodial, accounting, investment banking, appraisal and financial advisory services provided by non-affiliated third parties relating to - 10 - investments or prospective investments, due diligence expenses and fees relating to investments or prospective investments, conduct of proxy contests and tender offers, litigation expenses and legal expenses (including the cost of in-house counsel of the Management Company, the Managing General Partner and their respective affiliates in amounts that are no greater than those that would typically be payable to outside counsel engaged to perform such services as reasonably determined by the Managing General Partner in good faith) incurred in connection with the making or administration of investments (to the extent not borne by the Company and regardless of whether consummated), liability insurance covering the Managing General Partner, the Management Company and their respective affiliates, members, directors, officers, employees and agents, and extraordinary expenses and other similar expenses related to the Partnership as the Managing General Partner determines in its sole discretion. The expenses (other than the Management Fee) will be shared by all of the Partners including the Managing General Partner. Sec. 2.08 PRINCIPAL TRANSACTIONS. Each Limited Partner acknowledges that from time to time, the Managing General Partner may deem it appropriate for the Partnership to engage in "principal transactions" (as defined in Section 2.06(3) of the Investment Advisers Act of 1934, as amended). Each Limited Partner hereby agrees that any "principal transaction" will be considered and approved or disapproved, to the extent required by applicable law, by the Investor Committee or another independent representative appointed by the Managing General Partner, as determined by the Managing General Partner in its sole discretion. In no event shall any such transaction be entered into unless it complies with applicable law. ARTICLE III Capital Accounts of Partners and Operation Thereof Sec. 3.01 DEFINITIONS. For the purposes of this Agreement, unless the context otherwise requires: (a) The term "Accounting Period" shall mean the following periods: The initial Accounting Period shall begin upon the commencement of the Partnership. Each subsequent Accounting Period shall commence immediately after the close of the immediately preceding Accounting Period. Each Accounting Period hereunder shall close at the close of business on the first to occur of (i) the last day of each quarter of the Partnership, (ii) the date immediately prior to the effective date of the admission of a new Partner pursuant to Section 4.01, (iii) the date immediately prior to the effective date of an additional Capital Contribution pursuant to Section 3.02, (iv) any date on which a Partner makes a withdrawal from a Capital Account, (v) any date on which the Managing General Partner makes a distribution to Partners or other disposition of all or a portion of the Securities or proceeds from the sale thereof, (vi) the date when the Partnership shall dissolve or (vii) such other date as is determined by the Managing General Partner. (b) The term "Beginning Value" shall, with respect to any Accounting Period, mean the value of the Partnership's Net Assets at the beginning of such Accounting Period after - 11 - giving effect to withdrawals relating to the immediately preceding Withdrawal Date and after giving effect to payment of the Management Fee. (c) The term "Ending Value" shall, with respect to any Accounting Period, mean the value of the Partnership's Net Assets at the end of such Accounting Period (before any reduction for Withholding Taxes (as defined in Section 3.01(g))). (d) The term "Net Assets" shall mean the excess of the Partnership's assets (valued in accordance with Section 3.07) over its liabilities (determined in accordance with Section 3.08). (e) The term "Net Capital Appreciation" shall, with respect to any Accounting Period, mean the excess, if any, of the Ending Value over the Beginning Value. (f) The term "Net Capital Depreciation" shall, with respect to any Accounting Period, mean the excess, if any, of the Beginning Value over the Ending Value. (g) The term "Withholding Tax" shall mean tax withheld from the income of the Partnership or paid over by the Partnership that is determined based on the status of a Partner. Sec. 3.02 CAPITAL CONTRIBUTIONS. (a) Each Partner has paid or conveyed by way of contribution to the Partnership cash (a "Capital Contribution") having an aggregate value as set forth in the Partnership's books and records. Additional Capital Contributions may be made by Limited Partners only in accordance with the provisions of this Section 3.02. (b) With the prior approval of the Managing General Partner, a Limited Partner may make additional Capital Contributions to the Partnership in cash at such time as the Managing General Partner may permit. (c) Subject to the prior approval of the Managing General Partner, each Limited Partner may make additional Capital Contributions in respect of an LP Investor's subscription or otherwise to the Feeder Fund (as defined below). Any such Capital Contributions shall be made in accordance with the provisions of this Section 3.02. For purposes of this Agreement "Feeder Fund" shall mean Trian SPV I, Ltd., a Cayman Islands exempted company. (d) The interests in the Partnership may be divided into separate Capital Accounts to correspond with (i) multiple Capital Contributions (if any) made in respect of an LP Investor's Subscription Commitment (and shall be so divided in the case of the Feeder Fund), and (ii) each Capital Contribution by an LP Investor with respect to the classes, series and/or holders of interests or shares issued by such Limited Partner to its LP Investor (and shall be so divided in the case of the Feeder Fund) and any Capital Contributions by a Limited Partner that are derived from capital contributions made to such Limited Partner by an LP Investor shall be credited to the corresponding Capital Account(s). Any holder of a direct interest in a Limited Partner is hereinafter called an "LP Investor." Sec. 3.03 CAPITAL ACCOUNTS. A separate capital account (herein called the "Capital Account") shall be established on the books of the Partnership for each General Partner - 12 - and for each Limited Partner for each separate Capital Contribution made by such Partner, and such Capital Accounts of any particular Limited Partner shall be separated as and to the extent provided in or pursuant to Section 3.02(d). The Capital Account of each Partner shall be in an amount equal to such Partner's initial Capital Contribution with respect to such Capital Account, adjusted as hereinafter provided. At the end of each Accounting Period, each Capital Account of a Partner shall be (i) increased or decreased by the amount credited or debited to such Capital Account of such Partner pursuant to Section 3.05; and (ii) decreased by the amount of any withdrawals made by such Partner from such Capital Account pursuant to Section 5.03 or any distributions made to such Partner from such Capital Account pursuant to Section 5.06. At the beginning of each fiscal quarter, each Capital Account of a Limited Partner shall be decreased by the amount of the Management Fee calculated in respect of such Capital Account pursuant to Section 2.07. The Capital Account of each Limited Partner also shall be decreased by the amount of any fee paid with respect to any interest purchased on a date that does not fall on the first day of a fiscal quarter. For administrative convenience, the Managing General Partner may combine multiple Capital Accounts in respect of any particular LP Investor that have been established pursuant to Section 3.02(d) that have the same characteristics (e.g., remaining Lock-up Period (as defined in Section 5.02), Loss Recovery Account (as defined in Section 3.05(c)) and fee terms). Sec. 3.04 PARTNERSHIP PERCENTAGES. A "Partnership Percentage" shall be determined for each Capital Account for each Accounting Period of the Partnership by dividing the amount of such Capital Account by the aggregate Capital Accounts of all Partners as of the beginning of such Accounting Period after taking into account Capital Contributions, withdrawals and distributions, as of such date. The sum of the Partnership Percentages shall equal 100 percent. Sec. 3.05 ALLOCATION OF NET CAPITAL APPRECIATION OR NET CAPITAL DEPRECIATION. (a) At the end of each Accounting Period, each Capital Account of each Partner (including each General Partner) for such Accounting Period shall be adjusted by crediting (in the case of Net Capital Appreciation) or debiting (in the case of Net Capital Depreciation) the Net Capital Appreciation or Net Capital Depreciation, as the case may be, in proportion to their respective Partnership Percentages. (b) Subject to Section 3.05(c), at the end of each fiscal year of the Partnership, or at such other times as are required by Section 3.05(d), the Partnership shall reallocate to the Capital Account of the Managing General Partner such percentage as it may agree in respect of each class of Limited Partner that it may designate of the excess of the Net Capital Appreciation, if any, allocated to each Capital Account of each Limited Partner in such class for such fiscal year over the Management Fee (and in the case of the Feeder Fund, expenses paid directly by the Feeder Fund) debited to such Limited Partner's Capital Account pursuant to Section 2.07 for such fiscal year (the "Incentive Allocation"); PROVIDED, HOWEVER, that the Net Capital Appreciation upon which the calculation of the Incentive Allocation is based shall be reduced to the extent of any unrecovered balance remaining in the Loss Recovery Account maintained on - 13 - the books and records of the Partnership for such related Capital Account. The amount of the unrecovered balance remaining in the Loss Recovery Account at the time of calculating the Incentive Allocation shall be the amount existing immediately prior to its reduction pursuant to the second clause of the second sentence of Section 3.05(c). The Managing General Partner may waive, reduce or calculate differently the Incentive Allocation for the direct and indirect holdings by Affiliated Investors or for any Non-Affiliated Investors and may, in its sole discretion, elect to reduce, waive or calculate differently the Incentive Allocation with respect to any Limited Partner that is an affiliate, employee or relative of an Affiliated Investor or for any other Limited Partner. (c) There shall be established on the books of the Partnership for each Capital Account a memorandum account (the "Loss Recovery Account"), the opening balance of which shall be zero. For purposes of this Section 3.05, the Capital Account with respect to which a Loss Recovery Account was established shall be referred to as the "Related Capital Account." At the end of each fiscal year or at such other date during a fiscal year as the calculation of an Incentive Allocation is required to be made for such Partner under this Section 3.05, the balance in each Loss Recovery Account shall be adjusted as follows: first, if there has been, in the aggregate, Net Capital Depreciation (as adjusted pursuant to the last sentence of this paragraph) with respect to a Related Capital Account since the immediately preceding date as of which a calculation of an Incentive Allocation was made (or if no calculation has yet been made with respect to such Capital Account, since its creation), an amount equal to such Net Capital Depreciation shall be credited to such Loss Recovery Account, and, second, if there has been, in the aggregate, Net Capital Appreciation (as adjusted pursuant to the last sentence of this paragraph) with respect to such Related Capital Account since the immediately preceding date as of which a calculation of an Incentive Allocation was made, an amount equal to such Net Capital Appreciation, before any Incentive Allocation to the Managing General Partner, shall be debited to and reduce any unrecovered balance in such Loss Recovery Account, but not below zero. Solely for purposes of this Section 3.05(c), in determining a Limited Partner's Loss Recovery Account, Net Capital Appreciation and Net Capital Depreciation for any applicable period shall be calculated by taking into account the amount of the Management Fee (and in the case of the Feeder Fund, expenses paid directly by the Feeder Fund), if any, debited to such Limited Partner's Capital Account for such period In the event that a Limited Partner withdraws all or a portion of a Capital Account when there is an unrecovered balance in the Loss Recovery Account established in respect of such Capital Account (other than a withdrawal to pay Feeder Fund expenses as described in Section 5.03(f)), the unrecovered balance in such Loss Recovery Account shall be reduced as of the beginning of the next Accounting Period by an amount equal to the product obtained by multiplying the balance in such Loss Recovery Account by a fraction, the numerator of which is the amount of the withdrawal from such Capital Account made by such Limited Partner with respect to the immediately preceding Withdrawal Date and the denominator of which is the balance in such Capital Account on the last day of the prior Accounting Period. Additional Capital Contributions shall not affect any Loss Recovery Account. (d) In the event that (i) the Partnership is dissolved other than at the end of a fiscal year, (ii) the effective date of a Limited Partner's partial or complete withdrawal from any particular Capital Account is other than a fiscal year end, or (iii) a partial or complete - 14 - distribution of all of the amounts contained in a Limited Partner's Capital Account occurs on a date other than a fiscal year end, then for purposes of determining the Incentive Allocation, Net Capital Appreciation shall be determined through the termination date (for all Limited Partners), withdrawal date or distribution date (for the Capital Account relating to such withdrawal or distribution (as applicable) only) as if such dates were the end of the fiscal year, and the Incentive Allocation shall be made at that time. (e) For purposes of determining the impact of withdrawals on Incentive Allocations and Loss Recovery Accounts with respect to: (i) Limited Partners having multiple Capital Accounts other than as contemplated in Section 3.02(d)(ii); and (ii) any Limited Partner holding multiple Capital Accounts that have been established in respect of any particular LP Investor, pursuant to Section 3.02(d), withdrawals will be deemed to be made in respect of such Capital Accounts on a "first in -first out" basis. (f) In the event the Managing General Partner determines that, based upon tax or regulatory reasons, or any other reasons as to which the Managing General Partner and any Limited Partner agree, such Partner (or any LP Investor) should not participate in the Net Capital Appreciation or Net Capital Depreciation, attributable to any Security, type of Security or to any other transaction, or event if any, the Managing General Partner may allocate such Net Capital Appreciation or Net Capital Depreciation only to the Capital Accounts of Partners in respect of which such reasons do not apply. In addition, if for any of the reasons described above, the Managing General Partner determines that a Partner (or any LP Investor) should have no interest whatsoever in a particular Security, type of Security or transaction, the interests in such Security, type of Security or transaction may be set forth in a separate memorandum account in which Partners shall participate only with respect to Capital Accounts that the Managing General Partner determines should have an interest in such Security, type of Security or transaction (any such Partner, for such Security, type of Security or transaction, being referred to the extent of such participating Capital Account as an "Unrestricted Partner") and in the Net Capital Appreciation and Net Capital Depreciation for each such memorandum account, which shall be separately calculated. (g) At the end of each Accounting Period during which a memorandum account created pursuant to Section 3.05(f) (a "Memorandum Account") was in existence (or during which an interest in particular Securities was otherwise allocated away from the Capital Accounts of one or more Limited Partners), the Capital Accounts of each Unrestricted Partner may be debited PRO RATA in accordance with the Capital Accounts of all Unrestricted Partners at the opening of such Accounting Period in an amount equal to the interest that would have accrued on the amount used to purchase the Securities attributable to the Memorandum Account (the "Purchase Price") had the Purchase Price earned interest at the rate per annum being paid by the Partnership from time to time during the applicable Accounting Period for borrowed funds, or, if funds have not been borrowed by the Partnership during such Accounting Period, at the interest rate per annum that the Managing General Partner determines would have been paid if funds had been borrowed by the Partnership during such Accounting Period. The amount so debited shall then be credited to the Capital Accounts of all of the Partners PRO RATA in accordance with their Capital Accounts as of the opening of the Accounting Period. - 15 - (h) If the Partnership incurs a Withholding Tax or other tax obligation with respect to the share of Partnership income allocable to any Partner, then the Managing General Partner, without limitation of any other rights of the Partnership or the Managing General Partner, shall cause the amount of such obligation to be debited against the Capital Account(s) of such Partner as of the close of the Accounting Period during which the Partnership pays such obligation or has the Withholding Tax withheld from its income. The Managing General Partner shall not be obligated to apply for or obtain a reduction of or exemption from Withholding Tax on behalf of any Partner that may be eligible for such reduction or exemption. Sec. 3.06 AMENDMENT OF INCENTIVE ALLOCATION. The Managing General Partner shall have the right to amend, without the consent of the Limited Partners, Section 3.05 of this Agreement so that the Incentive Allocation therein provided conforms to any applicable requirements of the U.S. Securities and Exchange Commission (the "SEC") and other regulatory authorities; PROVIDED, HOWEVER, that no such amendment shall increase the Incentive Allocation that otherwise would be computed with respect to a Capital Account, other than as provided in Section 3.05. Sec. 3.07 VALUATION OF ASSETS. (a) Securities that are listed on a securities exchange shall be valued at their last sales prices on the date of determination on the primary securities exchange on which such Securities shall have traded on such date (or, in the event that the date of determination is not a date upon which a securities exchange was open for trading, on the last prior date on which such securities exchange was so open not more than 10 days prior to the date of determination). Securities that are not listed on an exchange but are traded over-the-counter shall be valued at the mean between the last "bid" and "asked" price for such security on such date, unless included in the NASDAQ National Market System, in which case they shall be valued based upon their last sales prices (if such prices are available); PROVIDED THAT, if the last sales price of a Security does not fall between the last "bid" and "asked" price for such Security on such date, then the Managing General Partner shall value such Security at the mean between the last "bid" and "asked" price for such Security on such date. Securities not denominated in U.S. dollars shall be translated into U.S. dollars at prevailing exchange rates as the Managing General Partner may determine in good faith. Securities that are difficult to value, including illiquid Securities of the type referred to in clause (i) above, will be valued as the Managing General Partner may determine in good faith. (b) All other assets of the Partnership (except goodwill, which shall not be taken into account) shall be assigned such value as the Managing General Partner may determine in good faith. (c) If the Managing General Partner determines in its sole discretion that the valuation of any Securities pursuant to Section 3.07(a) (other than Securities valued pursuant to clause (ii) thereof) does not fairly represent market value, the Managing General Partner may value such Securities as it determines in good faith and shall set forth the basis of such valuation in writing in the Partnership's records. - 16 - (d) All values assigned to Securities and other assets by the Managing General Partner pursuant to this Section 3.07 shall be final and conclusive as to all of the Partners. Sec. 3.08 LIABILITIES. Liabilities shall be determined using generally accepted accounting principles, as a guideline, applied on a consistent basis; PROVIDED, HOWEVER, that the Managing General Partner in its discretion may provide reserves for estimated accrued expenses, liabilities or contingencies, including general reserves for unspecified contingencies (even if such reserves are not in accordance with generally accepted accounting principles). Sec. 3.09 ALLOCATION FOR TAX PURPOSES. For each fiscal year, items of income, deduction, gain, loss or credit shall be allocated for U.S. income tax purposes among the Partners in such manner as to reflect equitably amounts credited or debited to each Partner's Capital Account(s) for the current and prior fiscal years (or relevant portions thereof). Allocations under this Section 3.09 shall be made pursuant to the principles of Section 704(b) and 704(c) of the U.S. Internal Revenue Code of 1986, as amended (the "Code"), and U.S. Treasury Regulations Sections 1.704-1(b)(2)(iv)(f) and (g), 1.704-1(b)(4)(i) and 1.704-3(e) promulgated thereunder, as applicable, or the successor provisions to such Section and Treasury Regulations. Notwithstanding anything to the contrary in this Agreement, there shall be allocated to the Partners such gains or income as shall be necessary to satisfy the "qualified income offset" requirements of U.S. Treasury Regulations Section 1.704-1(b)(2)(ii)(d). If the Partnership realizes ordinary income and/or capital gains (including short-term capital gains) for U.S. Federal income tax purposes (collectively, "income") for any fiscal year during or as of the end of which one or more Positive Basis Partners (as hereinafter defined) withdraw from the Partnership pursuant to Article V, the Managing General Partner may elect, in its discretion, to allocate such income (including items of income) as follows: (i) to allocate such income among such Positive Basis Partners, PRO RATA in proportion to the respective Positive Basis (as hereinafter defined) of each such Positive Basis Partner, until either the full amount of such income shall have been so allocated or the Positive Basis of each such Positive Basis Partner shall have been eliminated, and (ii) to allocate any income not so allocated to Positive Basis Partners to the other Partners in such manner as shall equitably reflect the amounts allocated to such Partners' Capital Accounts pursuant to Section 3.05. If the Partnership realizes deductions, ordinary losses and/or capital losses (including long-term capital losses) for U.S. Federal income tax purposes (collectively, "losses") for any fiscal year during or as of the end of which one or more Negative Basis Partners (as hereinafter defined) withdraw from the Partnership pursuant to Article V, the Managing General Partner may elect, in its discretion, to allocate such losses (including items of loss) as follows: (i) to allocate such losses among such Negative Basis Partners, PRO RATA in proportion to the respective Negative Basis (as hereinafter defined) of each such Negative Basis Partner, until either the full amount of such losses shall have been so allocated or the Negative Basis of each such Negative Basis Partner shall have been eliminated, and (ii) to allocate any losses not so allocated to Negative Basis Partners to the other Partners in such manner as shall equitably reflect the amounts allocated to such Partners' Capital Accounts pursuant to Section 3.05. - 17 - As used herein, (i) the term "Positive Basis" shall mean, with respect to any Partner and as of any time of calculation, the amount by which its interest in the Partnership (determined in accordance with Section 1.04) as of such time exceeds its "adjusted tax basis", for U.S. Federal income tax purposes, in its interest in the Partnership as of such time (determined without regard to such Partner's share of the liabilities of the Partnership under Section 752 of the Code), and (ii) the term "Positive Basis Partner" shall mean any Partner who withdraws from the Partnership and who has Positive Basis as of the effective date of its withdrawal (determined prior to any allocations made pursuant to this Section 3.09). As used herein, (i) the term "Negative Basis" shall mean, with respect to any Partner and as of any time of calculation, the amount by which its interest in the Partnership (determined in accordance with Section 1.04) as of such time is less than its "adjusted tax basis," for U.S. Federal income tax purposes, in its interest in the Partnership as of such time (determined without regard to such Partner's share of the liabilities of the Partnership under Section 752 of the Code), and (ii) the term "Negative Basis Partner" shall mean any Partner who withdraws from the Partnership and who has Negative Basis as of the effective date of its withdrawal (determined prior to any allocations made pursuant to this Section 3.09). Notwithstanding anything to the contrary in the foregoing in this Section 3.09, if a General Partner withdraws all or a portion of its Capital Account in any fiscal year, the Managing General Partner may, in its discretion, specially allocate income to itself equal to its Positive Basis attributable to the portion of its Capital Account that it withdraws during such fiscal year. Sec. 3.10 DETERMINATION BY THE MANAGING GENERAL PARTNER OF CERTAIN MATTERS. All matters concerning the valuation of Securities and other assets, liabilities, profits and losses of the Partnership, the allocation of income, deductions, gains and losses among the Partners, including taxes thereon, and accounting procedures, not expressly provided for by the terms of this Agreement, shall be determined by the Managing General Partner whose determination shall be final and conclusive as to all of the Partners. Sec. 3.11 ADJUSTMENTS TO TAKE ACCOUNT OF CERTAIN EVENTS. If the Code or Treasury Regulations promulgated thereunder require a withholding or other adjustment to the Capital Account of a Partner or some other event occurs necessitating in the Managing General Partner's judgment an equitable adjustment, the Managing General Partner shall make such adjustments in the determination and allocation among the Partners of Net Capital Appreciation, Net Capital Depreciation, Capital Accounts, Partnership Percentages, Incentive Allocation, items of income, deduction, gain, loss, credit or withholding for tax purposes, accounting procedures or such other financial or tax items as shall equitably take into account such event and applicable provisions of law, and the determination thereof by the Managing General Partner shall be final and conclusive as to all of the Partners. ARTICLE IV Admission of New Partners Sec. 4.01 NEW PARTNERS. Subject to the condition that each new Partner shall execute an appropriate supplement to this Agreement pursuant to which it agrees to be bound by - 18 - the terms and provisions hereof, the Managing General Partner may, in its sole discretion, admit one or more new Partners as of the first Business Day of each month or at such other times as determined by the Managing General Partner in its sole discretion (each such subsequent closing, a "Subsequent Closing"). A "Business Day" shall be any day on which commercial banks in New York City and the Cayman Islands are open for business. Admission of a new Partner shall not be a cause for dissolution of the Partnership. In no event will the Partnership at any time have more than 100 Partners. For purposes of this section, the number of Partners of the Partnership shall be determined in accordance with U.S. Treasury Regulations Section 1.7704-1(h). ARTICLE V Withdrawals and Distributions of Capital Sec. 5.01 WITHDRAWAL OF INITIAL LIMITED PARTNER. The Initial Limited Partner has made a Capital Contribution of USD 1.00 to the capital of the Partnership. Upon one or more additional Partners becoming Limited Partners, the Initial Limited Partner shall automatically withdraw as a Limited Partner and shall accordingly cease to be a Limited Partner and shall be entitled to receive, and the Partnership shall pay to the Initial Limited Partner, the amount of USD 1.00, and no more and shall have no further interest or obligation of any kind whatsoever as a Partner of the Partnership. Sec. 5.02 WITHDRAWALS AND DISTRIBUTIONS IN GENERAL. No Partner shall be entitled to (i) receive distributions from the Partnership, except as provided in Section 5.06 and Section 6.02; or (ii) withdraw any amount from a Capital Account, except as provided in Section 5.03, or upon the consent of, and upon such terms as may be determined by, the Managing General Partner in its sole discretion. Sec. 5.03 WITHDRAWALS. (a) Subject to Sections 5.03(b), 5.03(c), and 5.08, beginning two years and one day after the establishment of each Capital Account for each Limited Partner with respect to any particular Capital Contribution, determined in the case of the Feeder Fund in accordance with Section 3.02(d) (the "Lock-up Period"), such Limited Partner shall have the right, as of the last day of each calendar quarter of any year (each, a "Withdrawal Date"), upon written notice to the Managing General Partner delivered at least 65 days prior to such Withdrawal Date, to withdraw all or any portion of the balance in such Capital Account. With respect to multiple Capital Accounts established on account of any particular LP Investor, withdrawals will be deemed to be made on a "first in - first out" basis. If a Withdrawal Date does not fall on a Business Day, the withdrawal date will be the next Business Day. Withdrawal requests will be irrevocable by the Limited Partner upon receipt by the Managing General Partner, but such irrevocability may be waived by the Managing General Partner in its sole discretion. The Lock-up Period shall also apply to withdrawals (excluding withdrawals of Incentive Allocation) from the Capital Accounts of the Managing General Partner. Upon the expiration of the Lock-up Period with respect to any Capital Contribution made by the Managing General Partner, the - 19 - Managing General Partner may, on any Withdrawal Date, withdraw amounts in the applicable Capital Account. (b) Payment of the amount withdrawn shall be made within 30 days of the Withdrawal Date; PROVIDED, HOWEVER, that if a Limited Partner elects to withdraw 90% or more of its Capital Account(s) established in respect of the Capital Contributions of any particular LP Investor pursuant to Section 3.02(d), the Partnership shall pay the Limited Partner an amount equal to at least 90% of its estimated withdrawal proceeds computed on the basis of unaudited data as of the Withdrawal Date) within 30 days after the Withdrawal Date and the balance of the withdrawal shall be paid (subject to audit adjustments) within 30 days after completion of the audit of the Partnership's books for the year in which such withdrawal occurs. No interest will be paid on any balance due after a Withdrawal Date. The interests (or portion thereof being withdrawn) of a Limited Partner that gives notice of withdrawal pursuant to this Section 5.03(b) shall not be included in calculating the Partnership Percentages of the Limited Partners required to take any action under this Agreement. (c) In the event that aggregate withdrawal requests (other than pursuant to Section 5.03(b) or Section 5.03(c)) are received for any Withdrawal Date in an amount in excess of 20% of the Net Asset Value of the Partnership as of such date, the Managing General Partner may, in its sole discretion, (i) satisfy all such withdrawal requests, or (ii) reduce all withdrawal requests PRO RATA so that only 20% (such limitation, the "Gate") (or more, at the sole discretion of the Managing General Partner) of the Net Asset Value of the Partnership is withdrawn on such Withdrawal Date. A withdrawal request that is not satisfied in full as of the intended Withdrawal Date because of the foregoing restrictions will be satisfied at the immediately following Withdrawal Date and shall be satisfied in priority to later requests; PROVIDED, HOWEVER, that the withdrawal request will be fully satisfied (subject to the suspension provisions described in Section 5.08) no later than the last day of the twelfth full month following the initial Withdrawal Date to which the withdrawal request relates. Until the Withdrawal Date as of which a withdrawal becomes effective, the Capital Account of the withdrawing Partner will remain at risk. (d) The Managing General Partner may waive notice requirements and require or permit withdrawals under such other circumstances as it approves, including to pay expenses of the Feeder Fund approved by the Management Company. Sec. 5.04 REQUIRED WITHDRAWALS. The Managing General Partner may, in its sole discretion, require a Limited Partner to withdraw all or any part of its Capital Accounts at any time, for any reason or no reason, upon five days' prior written notice. The Managing General Partner also may terminate the entire interest of any Limited Partner in respect of any particular Capital Account(s) immediately in the event that the Managing General Partner, in its sole discretion, determines that (i) the Limited Partner or any LP Investor has made a material omission or material misstatement of fact with regard to the information such Limited Partner or such LP Investor provided to the Partnership or the Feeder Fund, (ii) such Partner's continued participation in the Partnership may cause the Partnership to fail to qualify for the safe harbor from "publicly traded partnership" status set forth in U.S. Treasury Regulations Section 1.7704-1(h) or (iii) such Limited Partner's or LP Investor's continued ownership of an interest in the Partnership or in the Limited Partner, respectively, may cause adverse legal, tax, regulatory or - 20 - other consequences to the Partnership. The Partner receiving such notice shall be treated for all purposes and in all respects as a Partner who has given notice of withdrawal of all or part of its Capital Accounts, as the case may be, under Section 5.03. Sec. 5.05 DEATH, DISABILITY, ETC. OF LIMITED PARTNERS. The death, disability, incapacity, adjudication of incompetency, termination, bankruptcy, insolvency or dissolution of a Limited Partner shall not dissolve the Partnership. The legal representatives of a Limited Partner shall succeed as assignee to the Limited Partner's interest in the Partnership upon the death, disability, incapacity, adjudication of incompetency, termination, bankruptcy, insolvency or dissolution of such Limited Partner, but shall not be admitted as a substituted Partner without the consent of the Managing General Partner, in its sole discretion. Sec. 5.06 DISTRIBUTIONS. (a) The Managing General Partner may at any time (including during the Lock-up Period), in its sole discretion, make distributions in cash or in kind (i) in connection with a withdrawal of funds from the Partnership by a Partner and (ii) at any time to all of the Partners on a PRO RATA basis in accordance with the Partners' Partnership Percentages; provided, that the Managing General Partner may elect, in its sole discretion, to give Limited Partners the option of opting out of any distributions pursuant to clause (ii). Additionally, upon the sale of all or substantially all of the Securities (and the determination of the Managing General Partner that the Partnership no longer intends to acquire Securities), the Managing General Partner will distribute the proceeds thereof to the Partners PRO RATA in accordance with their respective Partnership Percentages. (b) If a distribution is made in kind, immediately prior to such distribution, the Managing General Partner shall determine the fair market value of the property distributed and adjust the Capital Accounts of all Partners upwards or downwards as if such gain or loss had been recognized upon an actual sale of such property and allocated pursuant to Section 3.05. Each such distribution shall reduce the Capital Account(s) of the distributee Partner by the fair market value thereof. (c) The provisions of this Section 5.06 shall apply to distributions made in connection with any withdrawal under this Article V and in connection with dissolution pursuant to Article VI, unless otherwise provided for in Article VI. (d) (i) The Managing General Partner may withhold and pay over to the U.S. Internal Revenue Service (or any other relevant taxing authority or withholding agent) such amounts as the Partnership is required to withhold or pay over, pursuant to the Code or any other applicable law, on account of a Partner's distributive share of the Partnership's items of gross income, income or gain. (ii) For purposes of this Agreement, any taxes so withheld or paid over by the Partnership with respect to a Partner's distributive share of the Partnership's gross income, income or gain shall be deemed to be a distribution or payment to such Partner, reducing the amount otherwise distributable to such Partner, pursuant to this Agreement and reducing the Capital Account(s) of such Partner. If the amount of such taxes is greater than any - 21 - such distributable amounts, then such Partner and any successor to such Partner's interest shall pay the amount of such excess to the Partnership, as a contribution to the capital of the Partnership. (iii) The Managing General Partner shall not be obligated to apply for or obtain a reduction of or exemption from withholding tax on behalf of any Partner that may be eligible for such reduction or exemption. To the extent that a Partner claims to be entitled to a reduced rate of, or exemption from, a withholding tax pursuant to an applicable income tax treaty, or otherwise, the Partner shall furnish the Managing General Partner with such information and forms as such Partner may be required to complete where necessary to comply with any and all laws and regulations governing the obligations of withholding tax agents. Each Partner represents and warrants that any such information and forms furnished by such Partner shall be true and accurate and agrees to indemnify the Partnership and each of the Partners from any and all damages, costs and expenses resulting from the filing of inaccurate or incomplete information or forms relating to such withholding taxes. Sec. 5.07 EFFECTIVE DATE OF WITHDRAWAL. Unless otherwise specified herein, the effective date of a Partner's withdrawal with respect to any of its Capital Accounts shall mean the day immediately following: (i) the Withdrawal Date in the case of a withdrawal pursuant to Section 5.03(a), or (ii) the date determined by the Managing General Partner if such Partner shall be required to withdraw from the Partnership pursuant to Section 5.04. In the event the Withdrawal Date of a Partner shall be a date other than the last day of a fiscal year of the Partnership, each Capital Account of the withdrawing Partner that is subject to such withdrawal shall be adjusted pursuant to Section 3.05(b) as if the Withdrawal Date of such Partner's withdrawal were the last day of a fiscal year. Sec. 5.08 LIMITATIONS ON WITHDRAWAL OF CAPITAL ACCOUNT. (a) The right of any Partner or its legal representatives to withdraw any amount from a Capital Account and to have distributed to it any such amount (or any portion thereof) pursuant to this Article V is subject to the provision by the Managing General Partner for all Partnership liabilities in accordance with the Law and for reserves for contingencies and estimated accrued expenses and liabilities in accordance with Section 3.08, and for projected Incentive Allocations. In addition, no withdrawal shall be permitted that would result in a Capital Account having a negative balance. The unused portion of any reserve shall be distributed to the Partners to which the reserve applied, with interest at the prevailing savings bank rate for unrestricted deposits from time to time in effect in New York, New York, as determined by the Managing General Partner, after the Managing General Partner shall have determined that the need therefor shall have ceased. (b) The Managing General Partner may suspend withdrawal rights, in whole or in part: (i) during any period when any stock exchange or over-the-counter market on which the Partnership's investments are quoted, traded or dealt in is closed, other than for ordinary holidays and weekends, or during periods in which dealings are restricted or suspended; (ii) during the existence of any state of affairs as a result of which, in the opinion of the Managing General Partner, disposal of investments by the Partnership would not be reasonably practicable or would be seriously prejudicial to the non-withdrawing Limited Partners; (iii) during any - 22 - breakdown in the means of communication normally employed in determining the price or value of the Partnership's assets or liabilities, or of current prices in any stock market as aforesaid, or when for any other reason the prices or values of any assets or liabilities of the Partnership cannot reasonably be promptly and accurately ascertained; (iv) during any period when the transfer of funds involved in the realization or acquisition of any investments cannot, in the opinion of the Managing General Partner, be effected at normal rates of exchange; or (v) where such withdrawal would impede a pending tender offer, proxy contest, shareholder vote or other hostile action with respect to an issuer. Upon the determination by the Managing General Partner that any of the above-mentioned conditions no longer applies, withdrawal rights shall be promptly reinstated, and any pending withdrawal requests shall be honored as of the end of the fiscal quarter following such determination. (c) No partial withdrawals will be permitted if such withdrawal will cause the aggregate Capital Account balances established with respect to a Limited Partner or an LP Investor to fall below $5 million, unless approved by the Managing General Partner in its sole discretion. (d) The Managing General Partner, by written notice to any Limited Partner, may suspend payment of withdrawal proceeds to such Limited Partner if the Managing General Partner reasonably deems it necessary to do so to comply with anti-money laundering or other laws and regulations applicable to the Partnership, Management Company or any of the Partnership's other service providers. ARTICLE VI Duration and Dissolution of the Partnership Sec. 6.01 DURATION. The Partnership shall continue until the earliest of (i) a determination by the Managing General Partner, in its sole discretion, that the Partnership should be dissolved, (ii) the termination, bankruptcy, insolvency or dissolution of the Managing General Partner, or (iii) such time as the Managing General Partner determines that Partnership no longer holds and no longer intends to acquire Securities. Upon a determination to dissolve the Partnership, withdrawal requests and distributions in respect of pending withdrawals may not be made (other than pursuant to Section 5.03(d)). Sec. 6.02 DISSOLUTION. (a) Upon dissolution of the Partnership, in accordance with this Agreement and the Law, the Managing General Partner shall, subject to applicable law, within no more than 30 days after completion of a final audit of the Partnership's financial statements (which shall be performed within 90 days of such dissolution), make distributions out of the Partnership's assets, in the following manner and order: (i) to creditors, including Partners who are creditors, to the extent otherwise permitted by law, in satisfaction of liabilities of the Partnership (whether by payment or by establishment of reserves); and (ii) to the Partners in the proportion of their respective Capital Accounts. - 23 - (b) The Managing General Partner, in its discretion, at any time and from time to time, may designate one or more liquidators, including, without limitation, one or more members of the General Partners, who shall have full authority to wind up and liquidate the business of the Partnership and to make final distributions as provided in this Section 6.02. The appointment of any liquidator may be revoked or a successor or additional liquidator or liquidators may be appointed at any time by an instrument in writing signed by the Managing General Partner. Any such liquidator may receive compensation as shall be fixed, from time to time, by the Managing General Partner. (c) In the event that the Partnership is dissolved on a date other than the last day of a fiscal year, the date of such dissolution shall be deemed to be the last day of a fiscal year for purposes of adjusting the Capital Accounts of the Partners pursuant to Section 3.05. For purposes of distributing the assets of the Partnership upon dissolution, the Managing General Partner shall be entitled to a return, on a PARI PASSU basis with the Limited Partners, of the amount standing to its credit in its Capital Accounts and, with respect to its share of profits, based upon its Partnership Percentage. ARTICLE VII Tax Returns; Reports to Partners Sec. 7.01 INDEPENDENT AUDITORS. The financial statements of the Partnership shall be audited by an independent certified public accountant selected by the Managing General Partner as of the end of each fiscal year of the Partnership. Sec. 7.02 FILING OF TAX RETURNS. The Managing General Partner or its designated agent shall prepare and file, or cause the accountants of the Partnership to prepare and file, a U.S. Federal information tax return in compliance with Section 6031 of the Code, and any required state and local income tax and information returns for each tax year of the Partnership. Sec. 7.03 TAX MATTERS PARTNER. The Managing General Partner shall be designated on the Partnership's annual U.S. Federal information tax return, and have full powers and responsibilities, as the Tax Matters Partner of the Partnership for purposes of Section 6231(a)(7) of the Code. Each person (for purposes of this Section 7.03, called a "Pass-Thru Partner") that holds or controls an interest as a Partner on behalf of, or for the benefit of, another person or persons, or which Pass-Thru Partner is beneficially owned (directly or indirectly) by another person or persons, shall, within 30 days following receipt from the Tax Matters Partner of any notice, demand, request for information or similar document, convey such notice or other document in writing to all holders of beneficial interests in the Partnership holding such interests through such Pass-Thru Partner. In the event the Partnership shall be the subject of an income tax audit by any U.S. Federal, state or local authority, to the extent the Partnership is treated as an entity for purposes of such audit, including administrative settlement and judicial review, the Tax Matters Partner shall be authorized to act for, and its decision shall be final and binding upon, the Partnership and each Partner thereof. All expenses incurred in connection with any such audit, investigation, settlement or review shall be borne by the Partnership. - 24 - Sec. 7.04 REPORTS TO CURRENT PARTNERS. Within 90 days after the end of each audit date, or as soon thereafter as is reasonably possible, the Partnership shall cause its auditor to prepare and mail to each Partner, together with the report thereon of the accountants selected by the Managing General Partner, an audited financial report (which need not include the list of the Partnership's investments that may be required by generally accepted accounting principles) setting forth: (a) a balance sheet of the Partnership as of the end of such fiscal year; (b) a statement showing the Net Capital Appreciation or Net Capital Depreciation, as the case may be, for such year; (c) such Partner's Capital Account as of the end of such year; and (d) such Partner's Capital Account and Partnership Percentage for the then current Accounting Period. The Partnership will also provide periodic unaudited performance information, no less frequently than quarterly, to the Limited Partners. Sec. 7.05 REPORTS TO PARTNERS AND FORMER PARTNERS. Within 90 days of the end of each fiscal year, or as soon thereafter as is reasonably possible, the Partnership shall prepare and mail, or cause its accountants to prepare and mail, to each Partner and, to the extent necessary, to each former Partner (or its legal representatives), a report setting forth in sufficient detail such information as shall enable such Partner or former Partner (or such Partner's or former Partner's legal representatives) to prepare its U.S. Federal income tax return in accordance with the laws, rules and regulations then prevailing. Sec. 7.06 PARTNER TAX BASIS. Upon request of the Managing General Partner, each Partner agrees to provide to the Managing General Partner information regarding its adjusted tax basis in its Partnership interest along with documentation substantiating such amount. ARTICLE VIII Investor Committee Sec. 8.01 INVESTOR COMMITTEE. (a) The Managing General Partner may appoint (and may periodically reconstitute) an investor committee (the "Investor Committee") consisting of at least three individuals representing Limited Partners (excluding the Feeder Fund) and/or LP Investors in the Feeder Fund. (b) The Investor Committee shall provide such advice and counsel (if any) as may be requested by the Managing General Partner in connection with, among other things, the Funds' investments and potential conflicts of interest. Majority approval of the Investor Committee with respect to any investment or transaction for which the Managing General - 25 - Partner has sought such approval will be binding on all Limited Partners and no Limited Partner shall have any claim in respect of any investment or transaction approved by the Investor Committee, including, but not limited to breach by the Managing General Partner of its fiduciary duties or breach of this Agreement. An appointment to the Investor Committee is not transferable without the consent of the Managing General Partner, which consent may be given or withheld in its sole discretion. (c) Meetings of the Investor Committee shall be held upon the request of the Managing General Partner. No fees shall be paid by the Partnership to members of the Investor Committee; however, reasonable expenses incurred in attending meetings of the Investor Committee will be reimbursed by the Partnership. ARTICLE IX Miscellaneous Sec. 9.01 GENERAL. This Agreement: (i) shall be binding on the executors, administrators, estates, heirs, and legal successors and representatives of the Partners; and (ii) may be executed, through the use of separate signature pages or supplemental agreements, in any number of counterparts with the same effect as if the parties executing such counterparts had all executed one counterpart; PROVIDED, HOWEVER, that each such counterpart shall have been executed by the Managing General Partner. Sec. 9.02 POWER OF ATTORNEY. Each of the Partners hereby appoints the Managing General Partner as its true and lawful representative and attorney-in-fact, in its name, place and stead to make, execute, sign, acknowledge, swear to and file: (a) a Certificate of Limited Partnership of the Partnership and any amendments thereto as may be required under the Law; (b) any duly adopted amendment to this Agreement; (c) any and all instruments, certificates and other documents that may be deemed necessary or desirable to effect the dissolution and winding-up of the Partnership (including, but not limited to, a Certificate of Cancellation of the Certificate of Limited Partnership); and (d) any business certificate, fictitious name certificate, amendment thereto or other instrument or document of any kind necessary or desirable to accomplish the business, purpose and objectives of the Partnership, or required by any applicable U.S. Federal, state or local law. The power of attorney hereby granted by each of the Limited Partners is coupled with an interest, is irrevocable and shall survive, and shall not be affected by, the subsequent death, disability, incapacity, adjudication of incompetency, termination, bankruptcy, insolvency or dissolution of such Limited Partner; PROVIDED, HOWEVER, that such power of attorney will terminate upon the substitution of another limited partner for all of such Limited Partner's - 26 - interest in the Partnership or upon the complete withdrawal of such Limited Partner from participation in the Partnership. Sec. 9.03 AMENDMENTS TO PARTNERSHIP AGREEMENT. The terms and provisions of this Agreement may be modified or amended and/or the Partnership may be restructured at any time and from time to time with the written consent of Limited Partners having in excess of 50% of the Partnership Percentages of the Limited Partners and the affirmative vote of the Managing General Partner, insofar as is consistent with the laws governing this Agreement; PROVIDED, HOWEVER, that without the consent of the Limited Partners, the Managing General Partner may amend this Agreement to: (i) reflect changes validly made in the membership of the Partnership and the Capital Contributions and Partnership Percentages of the Partners; (ii) change the provisions relating to the Incentive Allocation as provided in, and subject to the provisions of, Section 3.06; (iii) reflect a change in the name of the Partnership; (iv) make a change that is necessary or, in the opinion of the Managing General Partner, advisable to qualify the Partnership as a limited partnership or a partnership in which the Limited Partners have limited liability under the laws of any U.S. or non-U.S. jurisdiction, or ensure that the Partnership will not be treated as an association taxable as a corporation or as a publicly traded partnership taxable as a corporation for U.S. Federal tax purposes; (v) make a change that does not adversely affect the Limited Partners in any material respect; (vi) make a change that is necessary or desirable to cure any ambiguity, to correct or supplement any provision in this Agreement that would be inconsistent with any other provision in this Agreement, or to make any other provision with respect to matters or questions arising under this Agreement that will not be inconsistent with the provisions of this Agreement, in each case so long as such change does not adversely affect the Limited Partners in any material respect; (vii) make a change that is necessary or desirable to satisfy any requirements, conditions or guidelines contained in any opinion, directive, order, statute, ruling or regulation of any U.S. Federal, state or non-U.S. governmental entity, so long as such change is made in a manner that minimizes any adverse effect on the Limited Partners; (viii) make a change that is required or contemplated by this Agreement; (ix) make a change in any provision of this Agreement that requires any action to be taken by or on behalf of the General Partners or the Partnership pursuant to applicable Cayman Islands law if the provisions of applicable Cayman law are amended, modified or revoked so that the taking of such action is no longer required; (x) prevent the Partnership from in any manner being deemed an "Investment Company" subject to the provisions of the U.S. Investment Company Act of 1940, as amended (the "1940 Act"); (xi) change the legal structure of the Partnership (for example, from a partnership to a limited liability company or exempted company); or (xii) make any other amendments and/or restructurings similar to the foregoing. Each Partner, however, must approve of any amendment that would (a) reduce its Capital Account or rights of contribution or withdrawal; or (b) amend the provisions of this Agreement relating to amendments. Sec. 9.04 NON-VOTING INTERESTS OF REGISTERED FUND LIMITED PARTNERS. A Limited Partner interest owned by an investment fund registered as an investment company under the 1940 Act (a "Registered Fund Limited Partner"), or by an Affiliate of a Registered Fund Limited Partner, or by a person controlling, controlled by or under common control with a Registered Fund Limited Partner, shall be a Non-Voting Interest; PROVIDED, HOWEVER, that such Non-Voting Interest shall be permitted to vote on matters with respect to which voting rights are not considered to be "voting securities" as defined under Section 2(a)(42) of the 1940 Act. - 27 - Except as provided in this Section 9.04, an interest held by a Registered Fund Limited Partner as a Non-Voting Interest shall be identical in all regards to all other interests held by Limited Partners. Sec. 9.05 CHOICE OF LAW. Notwithstanding the place where this Agreement may be executed by any of the parties hereto, the parties expressly agree that all of the terms and provisions hereof shall be construed under the laws of the Cayman Islands applicable to contracts made and to be entirely performed in such state and, without limitation thereof, that the Law as now adopted or as may be hereafter amended shall govern the partnership aspects of this Agreement. Sec. 9.06 CONSENT TO JURISDICTION. To the fullest extent permitted by law, in the event of any dispute arising out of the terms and conditions of this Agreement, the parties hereto consent and submit to the jurisdiction of the courts of the State of New York in the county of New York and of the U.S. District Court for the Southern District of New York. Sec. 9.07 TAX ELECTIONS. The Managing General Partner may, in its sole discretion, cause the Partnership to make or revoke any tax election that the Managing General Partner deems appropriate, including without limitation an election pursuant to Section 754 of the Code and an election to cause the Partnership to be classified as a partnership for U.S. Federal tax purposes. Sec. 9.08 NO THIRD PARTY RIGHTS. Except for the provisions of Sections 2.05 and 2.06, the provisions of this Agreement, including, without limitation, the provisions of Section 1.04 and Section 5.03, are not intended to be for the benefit of any creditor or other person (other than the Partners in their capacities as such) to whom any debts, liabilities or obligations are owed by (or who otherwise have a claim against or dealings with) the Partnership or any Partner, and no such creditor or other person shall obtain any rights under any of such provisions (whether as a third party beneficiary or otherwise) or shall by reason of any such provisions make any claim in respect to any debt, liability or obligation (or otherwise) including any debt, liability or obligation pursuant to Section 1.04, against the Partnership or any Partner. Any amendment, modification or repeal of Sections 2.05 and 2.06 shall not adversely affect any right or protection of any person in respect of any act or omission occurring prior to the time of such amendment, modification or repeal. Sec. 9.09 CONFIDENTIALITY. (a) In connection with the organization of the Partnership and its ongoing business, the Limited Partners (and in the case of the Feeder Fund, its LP Investors) will receive or have access to confidential proprietary information concerning the Partnership, including, without limitation, portfolio positions, valuations, information regarding potential investments, financial information, trade secrets and the like (the "Confidential Information"), which is proprietary in nature and non-public. Other than Affiliated Investors, no Partner, nor any Affiliate of any Partner, shall disclose or cause to be disclosed any Confidential Information to any person nor use any Confidential Information for its own purposes or its own account, except in connection with its investment in the Partnership and except as otherwise required by any regulatory authority, law or regulation, or by legal process. Notwithstanding anything herein to the contrary, each Partner (and each employee, representative or other agent of such Partner) may disclose to any and all persons, without - 28 - limitation of any kind, the tax treatment and tax structure of (i) the Partnership and (ii) any of its transactions, and all materials of any kind (including opinions or other tax analyses) that are provided to the Partner relating to such tax treatment and tax structure, it being understood that "tax treatment" and "tax structure" do not include the name or other identifying information of the Partnership or a transaction. (b) The Managing General Partner or its Affiliates shall be the only party to communicate with the Company or to make any public statements, public disclosures or any other third party communications on behalf of the Partnership relating to the Company, the Securities, this Agreement or the activities of the Managing General Partner and its Affiliates pursuant to this Agreement, including the making of any proposals regarding corporate transactions involving the Company or the Securities. Sec. 9.10 NOTICES. Each notice relating to this Agreement shall be in writing and delivered in person, by registered or certified mail, by Federal Express or similar overnight courier service or by telecopy. All notices to the Partnership shall be addressed to its principal office and place of business. All notices addressed to a Partner shall be addressed to such Partner at the address set forth on the books and records of the Partnership. Any Partner may designate a new address by written notice to that effect given to the Partnership. Unless otherwise specifically provided in this Agreement, a notice shall be deemed to have been effectively given when delivered personally, if delivered on a Business Day; the next Business Day after personal delivery if delivered personally on a day that is not a Business Day; four Business Days after being deposited in the United States mail, postage prepaid, return receipt requested, if mailed; on the next Business Day after being deposited for next day delivery with Federal Express or similar overnight courier; when receipt is acknowledged, if telecopied on a Business Day; and the next Business Day following the day on which receipt is acknowledged if telecopied on a day that is not a Business Day. Sec. 9.11 GOODWILL. No value shall be placed on the name or goodwill of the Partnership, which shall belong exclusively to the Managing General Partner. Sec. 9.12 HEADINGS. The titles of the Articles and the headings of the Sections of this Agreement are for convenience of reference only, and are not to be considered in construing the terms and provisions of this Agreement. Sec. 9.13 PRONOUNS. All pronouns shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or persons, firm or corporation may require in the context thereof. - 29 - IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the date first set forth above. GENERAL PARTNERS: Trian Partners GP, L.P. Trian Partners Cayman, Ltd. By: Trian Partners General Partner, LLC, By: /s/ Edward P. Garden its general partner ---------------------------- Name: Edward P. Garden By: /s/ Edward P. Garden Title: Director ----------------------------------- Name: Edward P. Garden Title: Member Executed as a Deed by TRIAN SPV I, L.P. By: Trian Partners GP, L.P. its general partner By: Trian Partners General Partner, LLC its general partner By: /s/ Edward P. Garden ----------------------------------- Name: Edward P. Garden Title: Member In the presence of: /s/ Tambra S. King ------------------- Witness INITIAL LIMITED PARTNER: Solely to reflect the withdrawal of the Initial Limited Partner pursuant to Section 5.01. Ian Gobin By: /s/ Ian Gobin ----------------------------------- EX-99 5 exhibit4.txt EXHIBIT 4 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that Castlerigg Master Investments Ltd., whose signature appears below, constitutes and appoints each of Timothy O'Brien, Patrick T. Burke, Kenneth Glassman and Richard A. Gashler as its attorney-in-fact and agent for the undersigned solely for the purpose of executing reports required under Sections 13(d) and 16 of the Securities Exchange Act of 1934, as amended, and filing the same, with exhibits and appendices thereto, and other documents in connection therewith, with the Securities and Exchange Commission, thereby ratifying and confirming all that each said attorney-in-fact may do or cause to be done by virtue hereof. Dated: April 24, 2006 CASTLERIGG MASTER INVESTMENTS LTD. By: Sandell Asset Management Corp. As Investment Manager By: /s/ THOMAS E. SANDELL ------------------------------ Thomas E. Sandell Title: Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that Sandell Asset Management Corp., whose signature appears below, constitutes and appoints each of Timothy O'Brien, Patrick T. Burke, Kenneth Glassman and Richard A. Gashler as its attorney-in-fact and agent for the undersigned solely for the purpose of executing reports required under Sections 13(d) and 16 of the Securities Exchange Act of 1934, as amended, and filing the same, with exhibits and appendices thereto, and other documents in connection therewith, with the Securities and Exchange Commission, thereby ratifying and confirming all that each said attorney-in-fact may do or cause to be done by virtue hereof. Dated: April 24, 2006 SANDELL ASSET MANAGEMENT CORP. By: /s/ THOMAS E. SANDELL ------------------------------ Thomas E. Sandell Title: Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that Castlerigg International Limited, whose signature appears below, constitutes and appoints each of Timothy O'Brien, Patrick T. Burke, Kenneth Glassman and Richard A. Gashler as its attorney-in-fact and agent for the undersigned solely for the purpose of executing reports required under Sections 13(d) and 16 of the Securities Exchange Act of 1934, as amended, and filing the same, with exhibits and appendices thereto, and other documents in connection therewith, with the Securities and Exchange Commission, thereby ratifying and confirming all that each said attorney-in-fact may do or cause to be done by virtue hereof. Dated: April 24, 2006 CASTLERIGG INTERNATIONAL LIMITED By: Sandell Asset Management Corp. As Investment Manager By: /s/ THOMAS E. SANDELL ------------------------------ Thomas E. Sandell Title: Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that Castlerigg International Holdings Limited, whose signature appears below, constitutes and appoints each of Timothy O'Brien, Patrick T. Burke, Kenneth Glassman and Richard A. Gashler as its attorney-in-fact and agent for the undersigned solely for the purpose of executing reports required under Sections 13(d) and 16 of the Securities Exchange Act of 1934, as amended, and filing the same, with exhibits and appendices thereto, and other documents in connection therewith, with the Securities and Exchange Commission, thereby ratifying and confirming all that each said attorney-in-fact may do or cause to be done by virtue hereof. Dated: April 24, 2006 CASTLERIGG INTERNATIONAL HOLDINGS LIMITED By: Sandell Asset Management Corp. As Investment Manager By: /s/ THOMAS E. SANDELL ------------------------------ Thomas E. Sandell Title: Chief Executive Officer -----END PRIVACY-ENHANCED MESSAGE-----