0000950130-95-001655.txt : 19950821 0000950130-95-001655.hdr.sgml : 19950821 ACCESSION NUMBER: 0000950130-95-001655 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19950818 SROS: NYSE SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: HEINZ H J CO CENTRAL INDEX KEY: 0000046640 STANDARD INDUSTRIAL CLASSIFICATION: CANNED, FROZEN & PRESERVED FRUIT, VEG & FOOD SPECIALTIES [2030] IRS NUMBER: 250542520 STATE OF INCORPORATION: PA FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: S-3/A SEC ACT: 1933 Act SEC FILE NUMBER: 033-61519 FILM NUMBER: 95565160 BUSINESS ADDRESS: STREET 1: 600 GRANT ST CITY: PITTSBURGH STATE: PA ZIP: 15219 BUSINESS PHONE: 4124565700 MAIL ADDRESS: STREET 2: P O BOX 57 CITY: PITTSBURGH STATE: PA ZIP: 15230 S-3/A 1 AMENDMENT NO. 1 TO FORM S-3 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 18, 1995 REGISTRATION NO. 33- 61519 ------------------------------------------------------------------------------- ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------- AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------- H.J. HEINZ COMPANY (Exact name of registrant as specified in its charter) PENNSYLVANIA 25-0542520 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 600 GRANT STREET PITTSBURGH, PENNSYLVANIA 15219 (412) 456-5700 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) ----------- LAWRENCE J. MCCABE, ESQ. SENIOR VICE PRESIDENT - GENERAL COUNSEL H.J. HEINZ COMPANY 600 GRANT STREET PITTSBURGH, PENNSYLVANIA 15219 (412) 456-5700 (Name, address, including zip code, and telephone number, including area code, of agent for service) ----------- COPIES TO: JAMES L. PURCELL, ESQ. FREDERICK W. KANNER, JEFFREY SMALL, ESQ. PAUL, WEISS, RIFKIND, WHARTON ESQ. DAVIS POLK & WARDWELL & GARRISON DEWEY BALLANTINE 450 LEXINGTON AVENUE 1285 AVENUE OF THE AMERICAS 1301 AVENUE OF THE AMERICAS NEW YORK, NEW YORK, NEW YORK 10019-6064 NEW YORK, NEW YORK 10019 NEW YORK 10017 (212) 373-3000 (212) 259-8000 (212) 450-4000 ----------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the effective date of this Registration Statement. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. [_] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_] CALCULATION OF REGISTRATION FEE ------------------------------------------------------------------------------- -------------------------------------------------------------------------------
TITLE OF EACH CLASS OF PROPOSED PROPOSED SECURITIES TO BE AMOUNT TO MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF REGISTERED BE REGISTERED PRICE PER UNIT(2) OFFERING PRICE(2) REGISTRATION FEE(3) ------------------------------------------------------------------------------------------------------- Common Stock, $.25 par value 14,662,500(1) $43.00 $630,487,500.00 $217,410.00
------------------------------------------------------------------------------- ------------------------------------------------------------------------------- (1) Includes 1,912,500 shares of Common Stock that may be purchased by the U.S. Underwriters from the Selling Shareholders to cover over-allotments, if any. (2) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c), based on the average high ($43.375) and low ($42.625) sales prices of the Registrant's Common Stock on the New York Stock Exchange on July 31, 1995. (3) Previously paid. ----------- THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. ------------------------------------------------------------------------------- ------------------------------------------------------------------------------- EXPLANATORY NOTE The prospectus relating to the Common Stock being registered hereby to be used in connection with an offering in the United States and Canada (the "U.S. Prospectus") is set forth following this page. The prospectus to be used in a concurrent international offering outside the United States and Canada (the "International Prospectus") will consist of alternate pages set forth following the U.S. Prospectus and the balance of the pages included in the U.S. Prospectus for which no alternate is provided. The U.S. Prospectus and the International Prospectus are identical except that they contain different front cover and back cover pages. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A + +REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE + +SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY + +OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT + +BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR + +THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE + +SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE + +UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF + +ANY SUCH STATE. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ SUBJECT TO COMPLETION, DATED AUGUST 18, 1995 [LOGO OF H.J. HEINZ COMPANY] 12,750,000 SHARES H.J. HEINZ COMPANY COMMON STOCK The 12,750,000 shares of common stock, par value $.25 per share (the "Common Stock"), of H.J. Heinz Company (the "Company") offered hereby are being offered by the Selling Shareholders in concurrent offerings in the United States and Canada and outside the United States and Canada (collectively, the "Offerings"). See "Underwriting." Of such shares, 10,200,000 shares are initially being offered in the United States and Canada by the U.S. Underwriters (the "United States Offering") and 2,550,000 shares are initially being offered outside the United States and Canada by the International Underwriters (the "International Offering"). The price to public and the aggregate underwriting discounts and commissions for the Offerings will be identical. The Company will not receive any of the proceeds from the sale of the shares. The Common Stock is listed on the New York Stock Exchange and the Pacific Stock Exchange under the symbol "HNZ." On August 15, 1995, the closing sales price of the Common Stock on the New York Stock Exchange was $42 5/8 per share. See "Price Range of Common Stock and Dividends." ----------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. -----------
Underwriting Price to Discounts and Proceeds to Selling Public Commissions* Shareholders+ Per Share............................ $ $ $ Total++.............................. $ $ $
----- * The Company and the Selling Shareholders have agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933. See "Underwriting." + Before deducting expenses of the Offerings payable by the Selling Shareholders estimated to be $ . ++The Selling Shareholders have granted the U.S. Underwriters a 30-day option to purchase up to 1,912,500 additional shares of Common Stock on the same terms per share solely to cover over-allotments, if any. If such option is exercised in full, the total price to public will be $ , the total underwriting discounts and commissions will be $ and the total proceeds to Selling Shareholders will be $ . See "Underwriting." The Common Stock is being offered by the Underwriters as set forth under "Underwriting" herein. It is expected that delivery of the Common Stock will be made at the offices of Dillon, Read & Co. Inc., New York, New York, on or about , 1995, against payment therefor in New York funds. The Joint Book Managers of the Offerings are Dillon, Read & Co. Inc. and Lazard Freres & Co. LLC. DILLON, READ & CO. INC. LAZARD FRERES & CO. LLC MERRILL LYNCH & CO. The date of this Prospectus is , 1995 [PICTURES OF 36 OF THE COMPANY'S PRODUCTS] 2 IN CONNECTION WITH THE OFFERINGS, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, THE PACIFIC STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME. ---------------- AVAILABLE INFORMATION H.J. Heinz Company (the "Company") is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy materials and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy materials and other information concerning the Company can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 or at its Regional Offices located at Suite 1400, 500 West Madison Street, Chicago, Illinois 60661 and 7 World Trade Center, 13th Floor, New York, New York 10048. Copies can be obtained by mail from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. In addition, reports, proxy statements and other information concerning the Company can also be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 and the Pacific Stock Exchange, Inc., 301 Pine Street, San Francisco, California 94104 or 233 South Beaudry Avenue, Los Angeles, California 90012, on which exchanges the Company's Common Stock, par value $.25 per share (the "Common Stock"), is listed. The Company has filed with the Commission a registration statement on Form S-3 (the "Registration Statement") (which term encompasses any amendments thereto) under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the shares of Common Stock offered hereby. This Prospectus does not contain all the information set forth in the Registration Statement, certain parts of which have been omitted in accordance with the rules and regulations of the Commission. For further information, reference is hereby made to the Registration Statement including the exhibits filed as a part thereof or otherwise incorporated therein. Statements made in this Prospectus as to the contents of any documents referred to are not necessarily complete, and in each instance reference is made to such exhibit for a more complete description and each such statement is qualified in its entirety by such reference. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The Company's Annual Report on Form 10-K for the fiscal year ended May 3, 1995 filed with the Commission (File No. 1-3385) pursuant to the Exchange Act, the Company's Current Report on Form 8- K dated March 29, 1995, as amended by the Company's Form 8-K/A dated May 30, 1995, the Company's Current Report on Form 8-K dated July 7, 1995, and the description of the Company's Common Stock contained in its Registration Statement on Form 10 filed in 1945 with the Commission pursuant to Section 12 of the Exchange Act, including any amendments or reports filed for the purpose of updating such description, are incorporated herein by reference. All other documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to the termination of the offering of the shares of Common Stock made hereby shall be deemed to be incorporated by reference in this Prospectus and to be a part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference, or contained in this Prospectus, shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide without charge to each person to whom this Prospectus has been delivered, upon written or oral request of such person, a copy (without exhibits other than exhibits specifically incorporated by reference) of any or all documents incorporated by reference into this Prospectus. Requests for such copies should be directed to the Corporate Affairs Department, H.J. Heinz Company, P.O. Box 57, Pittsburgh, Pennsylvania 15230-0057; telephone number (412) 456-6000. 3 THE COMPANY GENERAL H.J. Heinz Company ("Heinz" or the "Company") is one of the world's leading providers of processed food products and nutritional services. The Company's well diversified portfolio of businesses and strong brands achieved sales of $8.1 billion and operating income of $1.2 billion in fiscal 1995. Heinz sells more than 4,000 varieties to consumers in more than 200 countries and territories. Products with the number one share position in their respective markets generated approximately 58% of the Company's sales in fiscal 1995. The Company has substantially repositioned its product portfolio over the past four years towards higher growth categories including foodservice products, pet food and baby food through a series of acquisitions and divestitures with a net investment of approximately $1.6 billion. Concurrent with its repositioning, Heinz has invested approximately $1.4 billion over the same period to modernize and expand production facilities, which has enhanced efficiency and reduced costs. The Company has acted to reduce manufacturing and operating costs through headcount control, working capital efficiency, targeted use of marketing dollars and rationalization of fixed asset capacity. DIVERSIFIED PORTFOLIO The Company has a strong and diversified product portfolio with brands that are among the most recognizable in the world. Each of the brands and products listed below had sales in fiscal 1995 in excess of $100 million. PRODUCTS & BRANDS OVER $100 MILLION IN SALES "9-Lives" Canned Cat Food (U.S.) "Ore-Ida" Frozen Potatoes (U.S. "Budget Gourmet" Frozen Entrees Foodservice) (U.S.) "Ore-Ida" Frozen Potatoes (U.S. "Heinz" Baby Food (U.S.) Retail) "Heinz" Beans (U.K.) "Plasmon" Biscuits (Italy) "Heinz" Ketchup (Central Europe) "Plasmon" Strained Baby Foods "Heinz" Ketchup (U.S. Foodservice) (Italy) "Heinz" Ketchup (U.S. Grocery) Private Label Soups (U.S.) "Heinz" Single-Serve Condiments "Star-Kist" Light Meat Tuna (U.S.) (U.S.) "Star-Kist" White Meat Tuna (U.S.) "Heinz" Soups (U.K.) "Tegel" Chicken (New Zealand) "Heinz" Soups (U.S. Foodservice) "Wattie's" Food Products (New "Kibbles'N Bits" Dry Dog Food Zealand) (U.S.) "Weight Watchers" Frozen Entrees (U.S.) "Weight Watchers" Meetings (U.S.) Heinz and its affiliates participate, and are among the market leaders, in the following product categories: foodservice; pet food; sauces and condiments; infant feeding; frozen meals and snacks; tuna and seafood; frozen potatoes and vegetables; soups; beans and pasta; and weight control services. . FOODSERVICE. The Company has focused its efforts on developing or acquiring recipied, differentiated branded foodservice products with specialized and sophisticated distribution systems. "Heinz" ketchup holds a 61% share of the U.S. foodservice market. The Company also has a greater than 50% domestic market share of foodservice portion control products such as single-serve condiments, jellies, sweeteners, dressings and syrups. The Company has a strong and growing share of the approximately $2 billion foodservice frozen potato market. Other important branded foodservice products include "Chef Francisco" frozen soups; "Escalon" and "Heinz Bell'Orto" tomato products; "Moore's" frozen onion rings; "Domani" frozen pasta; and "Omstead" frozen coated vegetables and lake fish. 4 . PET FOOD. Heinz is the third largest producer and marketer of pet food in the U.S. with an overall market share of almost 20% in the over $7 billion U.S. market. The Company's strong portfolio of pet food products includes "9-Lives", "Amore" and "Kozy Kitten" cat food; "Kibbles 'n Bits", "Gravy Train", "Cycle", "Skippy", "Ken-L Ration" and "Reward" dog food; "Meaty Bone" and "Tartar Check" dog biscuits; and "Jerky Treats", "Pup-Peroni", "Snausages" and "Pounce" pet treats. The Company also has pet food operations in New Zealand and sells pet food in Canada and Japan. The Company's product line offers a balanced product mix of dog and cat food in either dry or canned form. . SAUCES AND CONDIMENTS. Heinz is known worldwide for its flagship product, "Heinz" tomato ketchup, the world's most popular ketchup. The Company holds a 51% share of the U.S. retail ketchup market and the leading share in most other markets in which its ketchup competes. Other notable products in this category include "Orlando" and "Guloso" tomato products and sauces, "Heinz 57 Sauce", "Heinz Gravy" and other specialty sauces, salad dressings, pickles, relishes and other condiments. . INFANT FEEDING. Heinz is a major producer of baby food in the U.S. and holds category leading shares in Italy, Canada, the United Kingdom, Australia, New Zealand, Venezuela, Hungary and the Czech Republic. The Company also has infant feeding businesses in China and India and is near completion of a baby food production facility in Russia. Major brands in this category include "Heinz", "Plasmon", "Nipiol", "Dieterba", "Farley's", "Farex" and "Wattie's". . FROZEN MEALS AND SNACKS. The Company markets frozen entrees and dinners under the "Weight Watchers", "The Budget Gourmet" and "Smart Ones" brands in the U.S. and under the "Weight Watchers from Heinz" brand in the U.K., and the "Weight Watchers" brand in Sweden, France and Australia. The Company holds 26% of the U.S. frozen entree market. Frozen snacks include "Bagel Bites", "Dyna Bites", "Cheese Bites" and "Papa's Piroshkis". . TUNA AND SEAFOOD. The Company is the largest tuna processor in the world and holds a 41% share of the U.S. market under its "Star-Kist" brand. In Europe, the Company sells tuna and other canned fish products under the "Petit Navire" and "Marie Elizabeth" brands and sells tuna products in Australia under the "Greenseas" label. . FROZEN POTATOES AND VEGETABLES. The Company has a category leading 49% share of the U.S. retail frozen potato market under its "Ore-Ida" brand. Ore-Ida holds a greater than 50% market share of the domestic frozen onion ring market. The Company's New Zealand affiliate also has leading shares in frozen potatoes and vegetables under the "Wattie's" brand. . SOUPS. "Heinz" is the leading brand of canned soup in the U.K., Australia and New Zealand. The Company also supplies approximately 85% of the private label soup sold in the U.S. . BEANS AND PASTA. The Company holds the number one market share in beans and canned pasta in the U.K., Australia and New Zealand with a greater than 50% market share in each country. . WEIGHT CONTROL SERVICES. The Company is the leading service provider of weight control meetings in the U.S., the U.K. and Australia under the "Weight Watchers" trademark. Weight Watchers also has meeting operations in Switzerland, Germany, Sweden, Finland and France. GEOGRAPHIC DIVERSIFICATION The Company's business is geographically diversified. U.S. operations accounted for 57% and non-U.S. operations represented 43% of consolidated fiscal 1995 sales. The following table shows the percentage of fiscal 1995 sales and operating income by geographic area.
OPERATING NET SALES INCOME --------- --------- North America 62% 62% Europe 23 24 Asia/Pacific 12 11 Other 3 3
The fastest growing geographic area is Asia/Pacific where sales have increased nearly 80% and operating income has more than doubled in the past two years. 5 OPERATING STRATEGY During the past four years, the Company has reinvested in and repositioned its portfolio, thereby improving its manufacturing base, gaining access to new markets and concentrating its portfolio in core product categories. Since the beginning of fiscal 1992 the Company has invested approximately $1.4 billion in various capital projects, enhancing efficiency and reducing production costs. Major factory modernizations and expansions include: rebuilding soup and baby food production facilities at Pittsburgh, Pennsylvania; expanding pet food production capacity at Bloomsburg, Pennsylvania; modernizing soup, bean and pasta production facilities at Kitt Green and Harlesden in the U.K.; and upgrading its baby food factory at Latina, Italy. The Company also has repositioned its portfolio through a series of acquisitions and divestitures that has resulted in a net investment of approximately $1.6 billion during the past four fiscal years. The most significant acquisitions include: The Quaker Oats Company's North American Pet Foods Division; John Labatt Ltd.'s JL Foods Inc. Division; Wattie's Limited in New Zealand; The All American Gourmet frozen meals business in the U.S.; Farley's infant feeding and adult nutrition business in the U.K.; Domani and Moore's in the U.S.; Glaxo's Family Products Division in India; and the Borden Foodservice Group in the U.S. With its renewed manufacturing facilities and repositioned portfolio, the Company has established a platform for growth. The expanding sales base should enable the Company to leverage its strong brand position and efficient production systems to grow earnings through the continued execution of the following strategies: . CORE PRODUCT LEADERSHIP AND GROWTH. The Company intends to continue to support its core brand franchises with a mix of media and consumer and trade directed marketing support, customized to meet the requirements of specific product markets and designed to encourage category growth and increase the Company's market shares. Total marketing support in fiscal 1995 was approximately $1.7 billion, an increase of 12% over the prior year. . NEW GEOGRAPHIC MARKETS. The Company has extended its geographic reach to new markets through exports, acquisitions, joint ventures and "greenfield" construction of new factories. The Company views geographic expansion as one of its most promising growth opportunities and it will continue to strive to expand its presence in markets in India, Eastern Europe, Asia/Pacific, Southern Africa and other areas outside the U.S. . INNOVATION. The Company expects to realize growth from the development of new products and services, including: new product introductions such as Star-Kist's "Pasta Sensations," "Rosetto" frozen pasta and "Heinz Fat Free Gravy"; new marketing concepts such as the "snack zone" in the frozen grocery section; and specially developed products for new selling channels such as "Select Balance" and "Select Care" pet foods sold through veterinary clinics and animal hospitals. . ACQUISITIONS. The Company has enhanced both sales and earnings growth through synergistic acquisitions. Recent acquisitions such as The Quaker Oats Company's North American Pet Food Division, The All American Gourmet frozen meal business in the U.S. and Farley's infant food business in the U.K. have strengthened the Company's position in key markets and provided opportunities to rationalize its manufacturing base. Acquisitions have also enabled the Company to expand to new geographic markets. The acquisition of "Wattie's" in New Zealand has provided the Company with a dominant position in the local market as well as a low cost manufacturing base for exports to Japan and elsewhere in Asia. . COST CONTROL. The Company pursues a program to become the low-cost operator in each of its businesses. The Company expects to continue to realize improvements in productivity and profitability as a result of its focus on controlling costs and the cost savings and production synergy opportunities presented as a result of recent acquisitions. The Company's executive offices are located at 600 Grant Street, Pittsburgh, Pennsylvania 15219. Its telephone number is (412) 456-5700. 6 USE OF PROCEEDS The Company will not receive any of the proceeds from the sale of the Common Stock offered hereby, and none of such proceeds will be available for use by the Company or otherwise for the Company's benefit. PRICE RANGE OF COMMON STOCK AND DIVIDENDS The Company's Common Stock is listed on the New York Stock Exchange and the Pacific Stock Exchange under the symbol "HNZ." The following table sets forth for the periods indicated the high and low intra-day prices for the Common Stock as reported on the New York Stock Exchange-Composite Transactions and dividends per common share.
COMMON STOCK PRICES -------------------- HIGH LOW DIVIDENDS -------------------- --------- Fiscal 1996: Second Quarter (through August 15, 1995)..... $44 $ 42 1/8 $0.00 First Quarter................................ 47 41 1/2 0.36 Fiscal 1995: Fourth Quarter............................... 43 37 1/8 0.36 Third Quarter................................ 41 1/4 35 1/2 0.36 Second Quarter............................... 38 3/8 32 3/8 0.36 First Quarter................................ 35 1/2 31 5/8 0.33 Fiscal 1994: Fourth Quarter............................... 35 7/8 30 3/4 0.33 Third Quarter................................ 38 1/2 34 0.33 Second Quarter............................... 39 7/8 34 1/8 0.33 First Quarter................................ 39 1/4 35 1/8 0.30
As of July 31, 1995, there were approximately 59,227 holders of record of the Company's Common Stock. The last reported sales price of the Common Stock on the New York Stock Exchange on August 15, 1995 was $42 5/8 per share. 7 SELECTED FINANCIAL DATA The following table contains selected consolidated financial data for each of the fiscal years in the five-year period ended May 3, 1995. The consolidated financial statements of the Company as of May 3, 1995 and April 27, 1994 and for each fiscal year in the three year period ended May 3, 1995 and the accountants' report thereon is incorporated by reference herein to the Company's Annual Report on Form 10-K for the fiscal year ended May 3, 1995 (the "1995 Form 10-K"). Such information is qualified in its entirety by and should be read in conjunction with the Company's consolidated financial statements and related footnotes included in the 1995 Form 10-K. The selected consolidated financial information is not necessarily indicative of the results of future operations of the Company.
FISCAL YEAR ENDED ------------------------------------------------------ MAY 3, APRIL 27, APRIL 28, APRIL 29, MAY 1, 1995 1994 1993 1992 1991 (53 WEEKS) (52 WEEKS) (52 WEEKS) (52 WEEKS) (52 WEEKS) ---------- ---------- ---------- ---------- ---------- (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) Sales................... $8,086,794 $7,046,738 $7,103,374 $6,581,867 $6,647,118 Interest expense........ 210,585 149,243 146,491 134,948 137,592 Income before cumulative effect of accounting change................. 591,025 602,944 529,943 638,295 567,999 Net income.............. 591,025 602,944 396,313 638,295 567,999 Income before cumulative effect of accounting change per common share.................. 2.38 2.35 2.04 2.40 2.13 Net income per common share.................. 2.38 2.35 1.53 2.40 2.13 Short-term debt and current portion of long-term debt......... 1,074,291 439,701 1,604,355 1,724,095 509,757 Long-term debt, exclusive of current portion................ 2,326,785 1,727,002 1,009,381 178,388 716,937 Total assets............ 8,247,188 6,381,146 6,821,321 5,931,901 4,935,382 Cash dividends per common share........... 1.41 1.29 1.17 1.05 .93
During 1995, the Company invested approximately $1.2 billion in acquisitions, the most significant of which was the North American pet food businesses of The Quaker Oats Company. See Notes 2 and 6 to the Consolidated Financial Statements, beginning on pages 43 and 47, respectively, of the Company's Annual Report to Shareholders for the fiscal year ended May 3, 1995, filed as Exhibit 13 to the 1995 Form 10-K (the "1995 Annual Report"). Results recorded in 1994 include pretax gains totaling $127.0 million ($0.24 per share) from the sale of the confectionery business of Heinz Italy and the sale of Heinz U.S.A.'s Near East specialty rice business. See Note 3 to the Consolidated Financial Statements on page 44 of the 1995 Annual Report. During 1993, the Company adopted the provisions of FAS No. 106 and elected immediate recognition of the cumulative effect by recording an after-tax charge of $133.6 million ($0.51 per share). See Note 11 to the Consolidated Financial Statements beginning on page 52 of the 1995 Annual Report. In 1993, restructuring charges of $192.3 million on a pretax basis ($0.45 per share) were reflected in operating income. See Note 4 to the Consolidated Financial Statements on page 45 of the 1995 Annual Report. In 1992, restructuring charges of $88.3 million on a pretax basis ($0.20 per share) were reflected in operating income to provide for the consolidation of functions, staff reductions, organizational reform and plant modernizations and closures. 8 Results recorded in 1992 also include a pretax gain of $221.5 million ($0.53 per share) on the sale of The Hubinger Company to Roquette Freres and a pretax pension curtailment gain of $38.8 million. SELLING SHAREHOLDERS The following table sets forth certain information regarding the beneficial ownership of Common Stock as of July 17, 1995, and as adjusted to reflect the sale of the Common Stock offered hereby, for all Selling Shareholders:
SHARES OF COMMON STOCK SHARES TO BE SHARES OF COMMON STOCK TO NAME OF SELLING BENEFICIALLY OWNED BEFORE SOLD IN THE BE BENEFICIALLY OWNED AFTER SHAREHOLDER THE OFFERINGS OFFERINGS(1) THE OFFERINGS(1) --------------- ------------------------------------------- -------------------------------- NUMBER PERCENTAGE NUMBER PERCENTAGE --------------- --------------- ---------------- --------------- Howard Heinz Endowment.. 15,063,231 6.12% 6,400,000 8,663,231 3.52% Vira I. Heinz Endowment. 7,567,460 3.07% 3,200,000 4,367,460 1.77% H. John Heinz III Revocable Trust No. 1.. 3,158,639 1.28% 1,275,000 1,883,639 * Heinz Family Foundation. 735,922 * 250,000 485,922 * H. John Heinz III Descendants' Trust (No. 1)..................... 625,000 * 625,000 -- -- H.J. Heinz II Family Trust................... 2,229,724 * 500,000 1,729,724 * H.J. Heinz II Charitable and Family Trust....... 2,697,000 1.10% 500,000 2,197,000 * --------------- ----------- ---------- ---------------- ----------- 32,076,976 13.03% 12,750,000 19,326,976 7.85% =============== ========== ================
-------- * Less than one percent of the outstanding shares of Common Stock. (1) Assumes there is no exercise of the U.S. Underwriters' over-allotment option. The Howard Heinz Endowment, Vira I. Heinz Endowment and Heinz Family Foundation are nonprofit corporations organized under the laws of the State of Pennsylvania and based in Pittsburgh, Pennsylvania. Their combined assets place them among the nation's 25 largest private, charitable foundations. The grantmaking of the Howard Heinz Endowment and the Vira I. Heinz Endowment is focused on the areas of arts and culture, community and economic development, education, health and human services, and the environment. The principal activity of the Heinz Family Foundation is the administration of the Heinz Awards, a program recognizing individual excellence and achievement. The H. John Heinz III Revocable Trust No. 1 and H.J. Heinz II Charitable and Family Trust are trusts established for certain related individuals and charities. The H. John Heinz III Descendants' Trust (No. 1) and H.J. Heinz II Family Trust are trusts established for certain related individuals. S. Donald Wiley, a trustee of the Vira I. Heinz Endowment, is a director of the Company. Pursuant to the Agreement for the Registration of Stock (the "Registration Agreement") between the Selling Shareholders and the Company, the Selling Shareholders have agreed not to sell or otherwise dispose of any shares of Common Stock of the Company (other than as set forth above) or any securities convertible into or exchangeable for, or any rights, options or warrants to acquire, any shares of Common Stock without the prior written consent of the Company (i) during the 90 day period beginning on the date of this Prospectus and (ii) with certain exceptions (including the right to sell up to 2.5 million shares and the right to make grants of 500,000 shares to charitable organizations), during an additional period of 180 days following the initial 90 day period. In addition, the Selling Shareholders have agreed not to sell or otherwise dispose of any shares of Common Stock during a specified period without the prior written consent of Dillon, Read & Co. Inc. and Lazard Freres & Co. LLC. See "Underwriting." Concurrently with the Offerings, 175,000 shares of Common Stock held by another shareholder are being registered by the Company under a separate registration statement. 9 DESCRIPTION OF CAPITAL STOCK The Company's authorized capital stock as set forth in its amended and restated Articles of Incorporation consists of 600,000,000 shares of Common Stock and 2,238,876 shares of Third Cumulative Preferred Stock, par value $10 per share (the "Third Preferred Stock"). The Board of Directors of the Company (the "Board of Directors") is authorized to designate the Third Preferred Stock into one or more series and to fix the rights, powers and preferences of each such series. As of July 17, 1995, 246,239,778 shares of Common Stock were outstanding and 35,746 shares of Third Preferred Stock, $1.70 First Series (the "First Series Stock") were outstanding. The following summarizes the terms of the Common Stock and the Third Preferred Stock (including the First Series Stock). Such summary does not purport to be complete and is qualified in all respects by reference to the Articles of Amendment dated July 13, 1994, amending and restating the Company's amended and restated Articles of Incorporation in their entirety (the "Articles of Incorporation"), and the By-laws of the Company, which have been incorporated by reference as exhibits to this Registration Statement of which this Prospectus forms a part. COMMON STOCK Each share of Common Stock is entitled to one vote and is equal in all other respects to any other share of Common Stock. Subject to the dividend preferences of the Third Preferred Stock described below, dividends may be paid to the holders of Common Stock when, as and if declared by the Board of Directors out of funds legally available therefor. Upon liquidation, dissolution or winding up of the affairs of the Company, any assets remaining after providing for payment of creditors (and any liquidation preference of any outstanding shares of Third Preferred Stock) will be distributed pro rata among the holders of the Common Stock. THIRD PREFERRED STOCK Holders of Third Preferred Stock are entitled to receive when, as and if declared by the Board of Directors out of the funds legally available therefor cumulative cash dividends payable quarter-yearly at the annual rate fixed by the Board of Directors for each particular series. The Board of Directors fixed $1.70 per share as the rate per annum at which the holders of shares of First Series Stock are entitled to receive dividends. Holders of Third Preferred Stock entitled to vote shall be entitled to vote together with the Common Stock, and not as a separate class, on all matters at every meeting of the holders of Common Stock and, in addition, may vote separately as a class to the extent provided in the paragraph below. In addition, if and when six quarter-yearly dividends payable on Third Preferred Stock of any series are in default, in whole or in part, the holders of the then outstanding Third Preferred Stock will be entitled to elect separately as a class two additional directors to the then existing Board of Directors. When all dividends then in default are thereafter paid, the Third Preferred Stock will be divested of such additional voting power until such time as a similar future default occurs. Each holder of First Series Stock is entitled to one- half vote for each share of First Series Stock registered in such holder's name. The consent of the holders of at least two-thirds of the Third Preferred Stock at any time outstanding is necessary to effect any one or more of the following: (1) the authorization, or any increase in the authorized amount, of any class of stock of the corporation ranking prior to or on parity with the Third Preferred Stock, either as to dividends or upon liquidation, or any increase in the authorized amount of the Third Preferred Stock; (2) any amendment, alteration or repeal of any provision of the Articles of Incorporation which would adversely affect the Third Preferred Stock; or (3) the redemption of less than all of the Third Preferred Stock then outstanding or the purchase of Third Preferred Stock from less than all holders thereof, unless the full dividend on the Third Preferred Stock for all past dividend periods has been paid or declared and a sum sufficient for the payment thereof set apart. 10 So long as any Third Preferred Stock remains outstanding, no dividend may be paid or declared on the Common Stock nor may any distribution be made on the Common Stock (other than a dividend payable in Common Stock), nor may the Company acquire for consideration any shares of Common Stock (1) unless all dividends on the Third Preferred Stock of all series for all past dividend periods have been paid and the full dividend thereon for the then current period has been paid or declared and a sum sufficient for the payment thereof set apart, or (2) unless, if at any time the Company is obligated to retire shares of any series of the Third Preferred Stock pursuant to its sinking fund, all arrears in respect of each sinking fund for each series of Third Preferred Stock have been made good. Subject to the rights of the holders of Third Preferred Stock described above and to any resolutions issuing shares of any particular series of Third Preferred Stock, the Company may redeem at any time in whole or in part any Third Preferred Stock then outstanding for a redemption price established in the resolution issuing the series being redeemed, together with any accrued and unpaid dividends up to the date fixed for redemption. The Board of Directors by resolution has fixed the redemption price for each share of First Series Stock at $28.50. In the event of any liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, before any payment is made to the holders of Common Stock, holders of each series of Third Preferred Stock then outstanding will be entitled to receive in cash out of the assets of the Company the preferential liquidation price established in the resolution issuing such series, together with any accrued and unpaid dividends thereon to such time. The Board of Directors has fixed the preferential liquidation price for each share of First Series Stock at $28.50. Holders of First Series Stock may at any time convert each share of First Series Stock into fully paid and non-assessable shares of Common Stock at a conversion rate of nine shares of Common Stock per share of First Series Stock, subject to adjustment. No stock of the Company has cumulative voting, preemptive or other similar rights. CERTAIN PROVISIONS OF THE COMPANY'S ARTICLES OF INCORPORATION Certain provisions of the Articles of Incorporation of the Company summarized below may be deemed to have an anti-takeover effect and may delay, defer or prevent a tender offer or takeover attempt, including an attempt that might result in a premium over the market price for the shares of Common Stock held by stockholders. The Company's Articles of Incorporation provide that certain Business Combinations (as defined in the Articles of Incorporation) involving the Company and an Interested Shareholder (as defined in the Articles of Incorporation) must either (a) be approved by at least 80% of the voting power of the then outstanding shares of capital stock of the Company entitled to vote in an annual election of directors unless the Business Combination has been approved by a majority of the Continuing Directors (as defined in the Articles of Incorporation) or (b) provide for the stockholders to receive the minimum consideration for their shares described in the Articles of Incorporation and satisfy certain other conditions specified in the Articles of Incorporation. In addition, the Articles of Incorporation give to the Board of Directors the power to issue shares of preferred stock and to fix voting, redemption, conversion and other rights thereof without stockholder approval. By exercising this power, the Board of Directors could create and issue securities that could dilute the voting power of the holders of Common Stock, create obstacles to the merger of the Company with any other entity or otherwise make it impossible for a potential acquiror to obtain control of the Company, thus making its Common Stock less attractive to potential acquirors. 11 CERTAIN UNITED STATES TAX CONSEQUENCES TO NON-UNITED STATES HOLDERS The following is a general discussion of the material United States federal tax consequences of the ownership and disposition of Common Stock by a person (a "non-U.S. Holder") that, for United States federal income tax purposes, is a nonresident alien individual, a foreign corporation, a foreign partnership, or a non-resident fiduciary of a foreign estate or trust, as such terms are defined in the Internal Revenue Code of 1986, as amended (the "Code"). This discussion is based on the Code and administrative interpretations as of the date hereof, all of which may be changed either retroactively or prospectively. The discussion does not consider specific facts and circumstances that may be relevant to a particular holder's tax position. Each holder is urged to consult a tax advisor with respect to the United States federal tax consequences of holding and disposing of Common Stock, as well as any tax consequences that may arise under the laws of any state, municipality, foreign or other taxing jurisdiction. This discussion assumes that the Company's distribution to a non-U.S. Holder will consist solely of cash. Dividends paid to a non-U.S. Holder of Common Stock will be subject to withholding of United States federal income tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty, unless the dividends are effectively connected with the conduct of a trade or business of the non-U.S. Holder within the United States. Dividends received by such non- U.S. Holder that are effectively connected with the conduct of a trade or business of the non-U.S. Holder within the United States are exempt from the withholding tax described above. A non-U.S. Holder may claim this exemption by filing Form 4224 (Exemption From Withholding of Tax on Income Effectively Connected with the Conduct of Trade or Business in the United States) with the Company or its dividend paying agent. Dividends that are effectively connected with the conduct of a trade or business within the United States are generally taxed on a net basis, at regular rates and, in the case of foreign corporations, may also be subject to an additional U.S. branch profits tax of 30% (or lower applicable treaty rate). For purposes of determining whether tax is to be withheld at a 30% rate or at a reduced rate as specified by an income tax treaty, the Company ordinarily will presume that dividends paid to an address in a foreign country are paid to a resident of such country absent knowledge that such presumption is not warranted. However, under proposed U.S. Treasury regulations which have not yet been put into effect, in order to claim the benefit of an applicable tax treaty rate, a non-U.S. Holder may have to file with the Company or its dividend-paying agent a reduced treaty rate certificate or letter in accordance with the terms of such treaty. Dividends paid to a non-U.S. Holder at an address within the United States may be subject to backup withholding (imposed at a rate of 31%) if the non- U.S. Holder fails to establish that it is entitled to an exemption or to provide a correct taxpayer identification number and other information to the payor. Generally, the Company must report to the U.S. Internal Revenue Service the amount of dividends paid, the name and address of the recipient, and the amount, if any, of tax withheld. A similar report is sent to the holder. Pursuant to tax treaties or other agreements, the U.S. Internal Revenue Service may make its reports available to tax authorities in the recipient's country of residence. A non-U.S. Holder generally will not be subject to United States federal income tax with respect to gain recognized on a disposition of Common Stock unless (i) the gain is effectively connected with a trade or business of the non-U.S. Holder in the United States, (ii) in the case of a non-U.S. Holder who is a nonresident alien individual and holds the Common Stock as a capital asset, such holder is present in the United States for 183 or more days in the taxable year of the sale, (iii) the non-U.S. Holder has owned more than 5% of the Common Stock at any time during the five-year period ending on the date of the disposition of such interest and the Common Stock is, at the time of the disposition, a United States real property interest within the meaning of section 897(c)(1) of the Code, or (iv) the non-U.S. Holder is subject to tax pursuant to certain provisions of the Code applicable to expatriates. The Common Stock is not, and the Company does not anticipate that the Common Stock will become, a U.S. real property interest. The tax consequences to non-U.S. Holders who acquire Common Stock through partnerships engaged in a trade or business in the United States may be different from those discussed above. 12 Common Stock held by or treated as held by a non-U.S. Holder at the time of death will be included in such holder's gross estate for United States federal estate tax purposes, unless an applicable estate tax treaty provides otherwise. Under temporary United States Treasury regulations, United States information reporting requirements and backup withholding tax will not apply to dividends paid on Common Stock to a non-U.S. Holder at an address outside the United States. Payment by a United States office of a broker of the proceeds of a sale of Common Stock is subject to both backup withholding at a rate of 31% and information reporting unless the holder certifies its non-United States status under penalties of perjury or otherwise establishes an exemption. Information reporting requirements (but not backup withholding) will also apply to a payment of the proceeds of a sale of Common Stock by a foreign office of a United States broker, or certain foreign brokers, unless the broker has documentary evidence in its records that the holder is a non-U.S. Holder and certain other conditions are met, or the holder otherwise establishes an exemption. If withholding results in an overpayment of taxes, a non-U.S. Holder may obtain a refund of any amounts withheld under the backup withholding rules by filing the appropriate claim for refund with the United States Internal Revenue Service. These backup withholding and information reporting rules are under review by the United States Treasury and their application to the Common Stock could be changed by future regulations. 13 UNDERWRITING The names of the U.S. Underwriters for the United States Offering and the aggregate number of shares of Common Stock which each has severally agreed to purchase from the Selling Shareholders, subject to the terms and conditions specified in the U.S. Underwriting Agreement, are as follows:
NUMBER U.S. UNDERWRITERS OF SHARES ------------------ ---------- Dillon, Read & Co. Inc. ....................................... Lazard Freres & Co. LLC........................................ Merrill Lynch, Pierce, Fenner & Smith Incorporated.......................................... ---------- Total...................................................... 10,200,000 ==========
The U.S. Managing Underwriters are Dillon, Read & Co. Inc., Lazard Freres & Co. LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated. The names of the International Underwriters for the International Offering and the aggregate number of shares of Common Stock which each has severally agreed to purchase from the Selling Shareholders, subject to the terms and conditions specified in the International Underwriting Agreement, are as follows:
NUMBER INTERNATIONAL UNDERWRITERS OF SHARES --------------------------- --------- Lazard Brothers & Co., Limited.................................. Dillon, Read & Co. Inc. ........................................ Merrill Lynch International Limited............................. --------- Total....................................................... 2,550,000 =========
The International Managing Underwriters are Lazard Brothers & Co., Limited, Dillon, Read & Co. Inc. and Merrill Lynch International Limited. The U.S. Underwriters and the International Underwriters are collectively referred to as the "Underwriters," and the U.S. Underwriting Agreement and the International Underwriting Agreement are collectively referred to as the "Underwriting Agreements." The offering price and aggregate underwriting discounts and commissions per share for the two Offerings are identical. The closing of the United States Offering is a condition to the closing of the International Offering, and vice versa. 14 If any shares of Common Stock offered hereby are purchased by the Underwriters, all such shares will be so purchased. The Underwriting Agreements contain certain provisions whereby if any U.S. Underwriter or International Underwriter defaults in its obligation to purchase such shares and if the aggregate obligations of the U.S. Underwriters or International Underwriters so defaulting do not exceed 10% of the shares offered in the United States Offering or the International Offering, respectively, the remaining U.S. Underwriters, or some of them, or the remaining International Underwriters, or some of them, as the case may be, must assume such obligations. The shares of Common Stock offered hereby are being initially offered severally by the Underwriters for sale at the price set forth on the cover page hereof, or at such price less a concession not to exceed $ per share on sales to certain dealers. The Underwriters may allow, and such dealers may reallow, a concession not to exceed $ per share to other Underwriters or to certain other dealers. The offering of the shares of Common Stock is made for delivery when, as and if accepted by the Underwriters and subject to prior sale and to withdrawal, cancellation or modification of the offer without notice. The Underwriters reserve the right to reject any order for the purchase of the shares of Common Stock. After the initial offering of the Common Stock, the offering price, concession and reallowance may be varied by the U.S. Managing Underwriters or the International Managing Underwriters. Pursuant to the Agreement between the U.S. Underwriters and the International Underwriters (the "Agreement Between Underwriters"), each U.S. Underwriter has represented and agreed that, with certain exceptions, (i) it is not purchasing any U.S. Shares (as defined below) for the account of anyone other than a United States or Canadian Person (as defined below) and (ii) it has not offered or sold, and will not offer or sell, directly or indirectly, any U.S. Shares or distribute any prospectus relating to the U.S. Shares outside the United States or Canada or to anyone other than a United States or Canadian Person. Pursuant to the Agreement Between Underwriters, each International Underwriter has represented and agreed that, with certain exceptions, (i) it is not purchasing any International Shares (as defined below) for the account of any United States or Canadian Person and (ii) it has not offered or sold, and will not offer or sell, directly or indirectly, any International Shares or distribute any prospectus relating to the International Shares within the United States or Canada or to any United States or Canadian Person. The foregoing limitations do not apply to stabilization transactions or to certain other transactions specified in the Agreement Between Underwriters. As used herein "United States or Canadian Person" means any resident of the United States or Canada, or any corporation, pension, profit sharing or other trust or other entity organized under the laws of the United States or Canada or of any political subdivision thereof (other than a branch located outside the United States and Canada of any United States or Canadian Person) and includes any United States or Canadian branch of a person who is otherwise not a United States or Canadian Person. All shares of Common Stock to be purchased by the U.S. Underwriters and the International Underwriters are referred to herein as the "U.S. Shares" and the "International Shares," respectively. Pursuant to the Agreement Between Underwriters, sales may be made between the U.S. Underwriters and the International Underwriters of such number of shares of Common Stock as may be mutually agreed. As a result, shares of Common Stock originally purchased pursuant to the U.S. Underwriting Agreement may be sold outside the United States and Canada, and shares of Common Stock originally purchased pursuant to the International Underwriting Agreement may be sold in the United States or Canada. The price of any shares so sold will, unless otherwise agreed, be the price to the public, less an amount not greater than the selling concession. Pursuant to the Agreement Between Underwriters, each U.S. Underwriter has represented that it has not offered or sold, and has agreed not to offer or sell, any shares of Common Stock, directly or indirectly, in Canada in contravention of the securities laws of Canada or any province or territory thereof and has represented that any offer of Common Stock in Canada will be made only pursuant to an exemption from the requirement to file a prospectus in the province or territory of Canada in which any such offer is made. Each U.S. Underwriter has further agreed to send any dealer who purchases from it any shares of Common Stock a notice stating in 15 substance that, by purchasing such Common Stock, such dealer represents and agrees that it has not offered or sold, and will not offer or sell, directly or indirectly, any of such Common Stock in Canada or to, or for the benefit of, any resident of Canada in contravention of the securities laws of Canada or any province or territory thereof and that any offer of Common Stock in Canada will be made only pursuant to an exemption from the requirement to file a prospectus in the province of Canada in which such offer is made, and that such dealer will deliver to any other dealer to whom it sells any of such Common Stock a notice to the foregoing effect. Pursuant to the Agreement Between Underwriters, each International Underwriter has represented and agreed that: (i) it has not offered or sold and during the period of six months from the date hereof will not offer or sell any shares of Common Stock to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations of 1995 (the "Regulations"); (ii) it has complied and will comply with all applicable provisions of the Financial Services Act 1986 and the Regulations with respect to anything done by it in relation to the Common Stock in, from or otherwise involving the United Kingdom; and (iii) it has only issued or passed on and will only issue or pass on to any person in the United Kingdom any document received by it in connection with the offer of the Common Stock if that person is of a kind described in Article 11(3) of the Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1988 or is a person to whom such document may otherwise lawfully be issued or passed on. The Selling Shareholders have granted to the U.S. Underwriters an option to purchase an aggregate of up to an additional 1,912,500 shares of Common Stock on the same terms. If the U.S. Underwriters exercise this option, each of the U.S. Underwriters will be obligated, subject to certain conditions, to purchase approximately the same proportion of the aggregate shares so purchased as the number of shares to be purchased by it shown in the above tables bears to 10,200,000. The U.S. Underwriters may exercise such option on or before the thirtieth day from the date hereof solely for the purpose of covering over-allotments, if any, in connection with the United States Offering. The Selling Shareholders have agreed not to offer, pledge, sell, contract to sell, grant any option to purchase, transfer or otherwise dispose of, directly or indirectly, any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock for a period of 90 days after the date of this Prospectus without the prior written consent of Dillon, Read & Co. Inc. and Lazard Freres & Co. LLC. In addition, the Selling Shareholders have agreed pursuant to the Registration Agreement not to sell or otherwise dispose of any shares of Common Stock (with certain exceptions) during certain specified periods without the prior written consent of the Company. See "Selling Shareholders." The Company and the Selling Shareholders have agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act, as amended, or to contribute to payments that the Underwriters may be required to make in respect thereof. From time to time, Dillon, Read & Co. Inc. has provided investment banking services to the Company for which it received normal and customary fees. The Common Stock is listed for trading on the New York Stock Exchange and the Pacific Stock Exchange under the symbol "HNZ." 16 LEGAL MATTERS The validity of the Common Stock will be passed upon by Lawrence J. McCabe, Senior Vice President-General Counsel of the Company. Mr. McCabe beneficially owns shares of the Company's Common Stock and holds options to purchase additional shares of Common Stock. Paul, Weiss, Rifkind, Wharton & Garrison, New York, New York, has acted as special counsel to the Company in connection with the Offerings. Davis Polk & Wardwell, New York, New York, has served as counsel to the Underwriters in connection with the Offerings. Dewey Ballantine, New York, New York, has served as counsel to the Selling Shareholders in connection with the Offerings. EXPERTS The consolidated financial statements of the Company as of May 3, 1995 and April 27, 1994 and for each of the three years in the period ended May 3, 1995 incorporated in this Prospectus by reference to the Annual Report on Form 10-K for the fiscal year ended May 3, 1995 have been so incorporated in reliance on the report of Coopers & Lybrand L.L.P., independent accountants, given on the authority of said firm as experts in accounting and auditing. The combined financial statements of The Quaker Oats Company's North American Pet Food Business for the fiscal year ended June 30, 1994 included in the Company's Form 8-K/A dated May 30, 1995, amending the Company's Current Report on Form 8-K dated March 29, 1995, have been incorporated by reference in this Prospectus and have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto, and are included herein in reliance upon the authority of said firm as experts in giving said reports. 17 [PICTURES OF 12 OF THE COMPANY'S PRODUCTS] 18 -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, THE SELLING SHAREHOLDERS OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SHARES OF COMMON STOCK TO ANY PERSON IN ANY JURISDICTION OR IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE OF THIS PROSPECTUS OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. --------------- TABLE OF CONTENTS
PAGE Available Information................................................. 3 Incorporation of Certain Documents by Reference......................................................... 3 The Company........................................................... 4 Use of Proceeds....................................................... 7 Price Range of Common Stock and Dividends........................................................ 7 Selected Financial Data............................................... 8 Selling Shareholders.................................................. 9 Description of Capital Stock.......................................... 10 Certain United States Tax Consequences to Non-United States Holders... 12 Underwriting.......................................................... 14 Legal Matters......................................................... 17 Experts............................................................... 17
-------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- [LOGO OF H.J. HEINZ COMPANY] H.J. HEINZ COMPANY --------------- 12,750,000 SHARES COMMON STOCK PROSPECTUS , 1995 --------------- DILLON, READ & CO. INC. LAZARD FRERES & CO. LLC MERRILL LYNCH & CO. -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A + +REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE + +SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY + +OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT + +BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR + +THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE + +SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE + +UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF + +ANY SUCH STATE. + ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ [ALTERNATE PAGE FOR INTERNATIONAL PROSPECTUS] SUBJECT TO COMPLETION, DATED AUGUST 18, 1995 [LOGO OF H.J. HEINZ COMPANY] 12,750,000 SHARES H.J. HEINZ COMPANY COMMON STOCK The 12,750,000 shares of common stock, par value $.25 per share (the "Common Stock"), of H.J. Heinz Company (the "Company") offered hereby are being offered by the Selling Shareholders in concurrent offerings in the United States and Canada and outside the United States and Canada (collectively, the "Offerings"). See "Underwriting." Of such shares, 2,550,000 shares are initially being offered outside the United States and Canada by the International Underwriters (the "International Offering") and 10,200,000 shares are initially being offered in the United States and Canada by the U.S. Underwriters (the "United States Offering"). The price to public and the aggregate underwriting discounts and commissions for the Offerings will be identical. The Company will not receive any of the proceeds from the sale of shares. The Common Stock is listed on the New York Stock Exchange and the Pacific Stock Exchange under the symbol "HNZ." On August 15, 1995, the closing sales price of the Common Stock on the New York Stock Exchange was $42 5/8 per share. See "Price Range of Common Stock and Dividends." ----------- THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. -----------
Underwriting Price to Discounts and Proceeds to Selling Public Commissions* Shareholders+ Per Share............................ $ $ $ Total++.............................. $ $ $
----- * The Company and the Selling Shareholders have agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933. See "Underwriting." + Before deducting expenses of the Offerings payable by the Selling Shareholders estimated to be $ . ++The Selling Shareholders have granted the U.S. Underwriters a 30-day option to purchase up to 1,912,500 additional shares of Common Stock on the same terms per share solely to cover over-allotments, if any. If such option is exercised in full, the total price to public will be $ , the total underwriting discounts and commissions will be $ and the total proceeds to Selling Shareholders will be $ . See "Underwriting." ------------------ JOINT BOOK MANAGERS DILLON, READ & CO. INC. LAZARD FRERES & CO. LLC The Common Stock is being offered by the Underwriters as set forth under "Underwriting" herein. It is expected that delivery of the Common Stock will be made at the offices of Dillon, Read & Co. Inc., New York, New York, on or about , 1995, against payment therefor in New York funds. ------------------ LAZARD CAPITAL MARKETS DILLON, READ & CO. INC. MERRILL LYNCH INTERNATIONAL LIMITED The date of this Prospectus is , 1995 [ALTERNATE PAGE FOR INTERNATIONAL PROSPECTUS] -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMA- TION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPEC- TUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, THE SELLING SHAREHOLDERS OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICI- TATION OF AN OFFER TO BUY SHARES OF COMPANY STOCK TO ANY PERSON IN ANY JURIS- DICTION OR IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AF- FAIRS OF THE COMPANY SINCE THE DATE OF THIS PROSPECTUS OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. THERE ARE RESTRICTIONS ON THE OFFER AND SALE OF THE SHARES OF COMMON STOCK OFFERED HEREBY IN THE UNITED KINGDOM. ALL APPLICABLE PROVISIONS OF THE PUBLIC OFFERS OF SECURITIES REGULATION OF 1995, THE FINANCIAL SERVICES ACT 1986 AND THE COMPANIES ACT 1985 WITH RESPECT TO ANYTHING DONE BY A PERSON IN RELATION TO THE COMMON STOCK IN, FROM OR OTHERWISE INVOLVING THE UNITED KINGDOM MUST BE COMPLIED WITH. SEE "UNDERWRITING." REFERENCES IN THIS PROSPECTUS TO "DOLLARS" AND "$" ARE TO U.S. DOLLARS. --------------- TABLE OF CONTENTS
PAGE Available Information................................................. 3 Incorporation of Certain Documents by Reference......................................................... 3 The Company........................................................... 4 Use of Proceeds....................................................... 7 Price Range of Common Stock and Dividends........................................................ 7 Selected Financial Data............................................... 8 Selling Shareholders.................................................. 9 Description of Capital Stock.......................................... 10 Certain United States Tax Consequences to Non-United States Holders... 12 Underwriting.......................................................... 14 Legal Matters......................................................... 17 Experts............................................................... 17
-------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- [LOGO OF H.J. HEINZ COMPANY] H.J. HEINZ COMPANY --------------- 12,750,000 SHARES COMMON STOCK PROSPECTUS , 1995 ------------------ LAZARD CAPITAL MARKETS DILLON, READ & CO. INC. MERRILL LYNCH INTERNATIONAL LIMITED -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following are the expenses of the issuance and distribution of the securities being registered, other than underwriting discounts and commissions, all of which will be borne by the Selling Shareholders. All amounts shown are estimates, except the SEC registration fee. SEC registration fee....................................... $217,410.00 Accounting fees and expenses............................... 125,000.00 Legal fees and expenses.................................... 550,000.00 Printing and engraving..................................... 90,000.00 Blue Sky fees and expenses................................. 20,000.00 Miscellaneous expenses..................................... 20,000.00 ------------- Total.................................................. $1,022,410.00 =============
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Company provides in Article Sixth of its Articles of Incorporation and Article VII of its By-Laws for the limitation of the liability of the Company's directors to the maximum extent permitted under Pennsylvania law from time to time in effect. These provisions were approved by the Company's shareholders on Septem- ber 9, 1987 and were adopted as a result of the passage of the Directors' Liability Act (an amendment to the Pennsylvania Judicial Code) which became effective on January 27, 1987 (the "Act"). The Act permits Pennsylvania corporations to eliminate, subject to shareholder approval of a provision in a corporation's by-laws, the personal liability (including liability to the corporation or to its shareholders) of directors for monetary damages for a breach of, or a failure to perform, their duties as directors, except to the extent their acts or omissions constitute self- dealing, willful misconduct or recklessness. The Act does not apply, however, to the responsibility or liability of a director pursuant to any criminal statute or to the liability of a director for the payment of taxes pursuant to local, state or Federal law. In addition, the Company provides in Article Sixth of its Articles of Incorporation and Article VIII of its By-Laws for the indemnification of the Company's directors, officers and others who may be later designated by the Board of Directors of the Company to the maximum extent permitted under Pennsylvania law from time to time in effect with respect to proceedings based on acts or omissions on or after January 27, 1987. These provisions were also adopted in response to the Act, which provides that directors, officers and other persons designated by the directors may be indemnified against liabilities and expenses incurred in the performance of their duties subject to the limitation that no indemnification may be made in any case where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted self- dealing, willful misconduct or recklessness. Given that the aforementioned provisions relating to indemnification incorporate the full extent of indemnification permitted under Pennsylvania law as from time to time in effect, such provisions would implement automatically any future changes in the law which expand the scope of permissible indemnification of the Company's directors and officers. However, any amendment or repeal of these provisions would not limit the rights of directors or officers to be indemnified with respect to acts or omissions which occurred prior to any such change. In connection with the adoption of Article VIII of the By-Laws relating to indemnification, the Company retained Article IX (formerly Article VII) of its By-Laws which provides for the indemnification of its present and former directors, officers, and managerial employees to the fullest extent permitted by and in accordance with the standards and procedures provided under Subchapter C of Chapter 17 of the Pennsylvania Business Corporation Law of 1988 (the "BCL") unless such persons have received the benefits of indemnification under II-1 Article VIII of the Company's By-Laws. Subchapter C of the BCL sets forth comprehensive indemnification provisions authorizing corporations to indemnify present and former directors, officers, employees and agents against liabilities incurred in connection with their service in such capacities. Under these sections of the BCL, such persons could be indemnified only if (i) the director or officer was successful on the merits of the suit or proceeding in respect of which indemnification was sought or (ii) indemnification was ordered by a court or (iii) a determination was made by the board of directors by a majority vote of a quorum consisting of directors who were not parties to the suit or proceeding, by independent legal counsel or by the stockholders that the director or officer has acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his conduct was unlawful. The Company is also authorized under Pennsylvania law, including the BCL, its Articles of Incorporation (Article Sixth) and its By-Laws (Article VIII and Article IX) to purchase insurance against such liabilities, whether or not the Company would have the power to indemnify such person against such liability by law or under the provisions of the Company's Articles of Incorporation or By-Laws. The Company has obtained directors' and officers' insurance against loss, within certain policy limits, arising from any claim made against the Company's directors and officers by reason of any wrongful act, as defined in such insurance policies, in their respective capacities as directors or officers or as fiduciaries under certain of the Company's employee benefit plans. ITEM 16. EXHIBITS The following Exhibits are either filed as part of this Registration Statement or incorporated herein by reference: **1(a) -- Form of U.S. Underwriting Agreement to be entered into by the Selling Shareholders, the Company and the U.S. Underwriters **1(b) -- Form of International Underwriting Agreement to be entered into by the Selling Shareholders, the Company and the International Underwriters 4(a) -- The Company's Articles of Amendment dated July 13, 1994, amending and restating the Company's amended and restated Articles of Incorporation in their entirety (Incorporated by reference to Exhibit No. 3(i) to the Company's Annual Report on Form 10-K for the fiscal year ended April 27, 1994) 4(b) -- By-Laws of the Company, as amended effective October 12, 1994 (Incorporated by reference to Exhibit No. 3(ii) to the Company's Annual Report on Form 10-K for the fiscal year ended May 3, 1995) 4(c) -- Agreement for the Registration of Stock (the "Registration Agreement") among the Company and Howard Heinz Endowment, Vira I. Heinz Endowment, Heinz Family Foundation, H. John Heinz III Revocable Trust No. 1 and H. John Heinz III Descendants' Trust (No. 1) dated June 22, 1995 (Incorporated by reference to Exhibit 10 to the Company's Current Report on Form 8-K dated July 7, 1995) **4(d) -- Amendment, dated August 2, 1995, to the Registration Agreement among the Company and Howard Heinz Endowment, Vira I. Heinz Endowment, Heinz Family Foundation, H. John Heinz III Revocable Trust No. 1, H. John Heinz III Descendants' Trust (No. 1), H.J. Heinz Family Trust and H.J. Heinz II Charitable and Family Trust *4(e) -- Registration Rights Agreement dated as of May 2, 1995 between AT&T Investment Management Corp. and the Company
II-2 **5 -- Opinion of Lawrence J. McCabe, Senior Vice President-General Counsel of the Company, as to the legality of the Common Stock *23(a) -- Consent of Coopers & Lybrand L.L.P. *23(b) -- Consent of Arthur Andersen LLP **23(c) -- Consent of Lawrence J. McCabe (included in his opinion filed as Exhibit 5) *24 -- Power of Attorney
-------- * Previously filed. ** Filed herewith. ITEM 17. UNDERTAKINGS (a) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (b) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. (c) The undersigned Registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-3 SIGNATURES PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT TO BE FILED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF PITTSBURGH, STATE OF PENNSYLVANIA, ON AUGUST 17, 1995. H.J. Heinz Company (Registrant) /s/ David R. Williams By___________________________________ DAVID R. WILLIAMS Senior Vice President-Finance and Chief Financial Officer PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON AUGUST 17, 1995.
SIGNATURE CAPACITY --------- -------- _____________________*_____________________ Chairman of the Board, President and Anthony J. F. O'Reilly Chief Executive Officer (Principal Executive Officer) /s/ David R. Williams ___________________________________________ Senior Vice President-Finance and David R. Williams Chief Financial Officer (Principal Financial Officer) _____________________*_____________________ Corporate Controller Tracy E. Quinn (Principal Accounting Officer)
Anthony J. F. O'Reilly Director Joseph J. Bogdanovich Director Nicholas F. Brady Director Richard M. Cyert Director Thomas S. Foley Director Edith E. Holiday Director Samuel C. Johnson Director William R. Johnson Director Donald R. Keough Director Albert Lippert Director Lawrence J. McCabe Director /s/ David R. Williams *By______________________________ Luigi Ribolla Director DAVID R. WILLIAMS Herman J. Schmidt Director Director and Attorney-in-Fact David W. Sculley Director Eleanor B. Sheldon Director William P. Snyder III Director William C. Springer Director S. Donald Wiley Director David R. Williams Director II-4 INDEX TO EXHIBITS
SEQUENTIAL PAGE EXHIBITS DESCRIPTION NUMBER -------- ----------- ---------- **1(a) - Form of U.S. Underwriting Agreement to be entered into by the Selling Shareholders, the Company and the U.S. Underwriters **1(b) - Form of International Underwriting Agreement to be entered into by the Selling Shareholders, the Company and the International Underwriters 4(a) - The Company's Articles of Amendment dated July 13, 1994, amending and restating the Company's amended and restated Articles of Incorporation in their entirety (Incorporated by reference to Exhibit No. 3(i) to the Company's Annual Report on Form 10-K for the fiscal year ended April 27, 1994) 4(b) - By-Laws of the Company, as amended effective October 12, 1994 (Incorporated by reference to Exhibit No. 3(ii) to the Company's Annual Report on Form 10-K for the fiscal year ended May 3, 1995) 4(c) - Agreement for the Registration of Stock (the "Registration Agreement") among the Company and Howard Heinz Endowment, Vira I. Heinz Endowment, Heinz Family Foundation, H. John Heinz III Revocable Trust No. 1 and H. John Heinz III Descendants' Trust (No. 1) dated June 22, 1995 (Incorporated by reference to Exhibit 10 to the Company's Current Report on Form 8-K dated July 7, 1995) **4(d) - Amendment, dated August 2, 1995, to the Registration Agreement among the Company and Howard Heinz Endowment, Vira I. Heinz Endowment, Heinz Family Foundation, H. John Heinz III Revocable Trust No. 1, H. John Heinz III Descendants' Trust (No. 1), H.J. Heinz Family Trust and H.J. Heinz II Charitable and Family Trust *4(e) - Registration Rights Agreement dated as of May 2, 1995 between AT&T Investment Management Corp. and the Company **5 - Opinion of Lawrence J. McCabe, Senior Vice President- General Counsel of the Company, as to the legality of the Common Stock *23(a) - Consent of Coopers & Lybrand L.L.P. *23(b) - Consent of Arthur Andersen LLP **23(c) - Consent of Lawrence J. McCabe (included in his opinion filed as Exhibit 5) *24 - Power of Attorney
-------- * Previously filed. ** Filed herewith. II-5 EX-1.A 2 U.S UNDER. AGT. EXHIBIT 1(a) H.J. HEINZ COMPANY COMMON STOCK ($0.25 Par Value) U.S. UNDERWRITING AGREEMENT August __, 1995 U.S. UNDERWRITING AGREEMENT August __, 1995 Dillon, Read & Co. Inc. 535 Madison Avenue New York, New York 10022 Lazard Freres & Co. LLC One Rockefeller Plaza New York, New York 10020 Merrill Lynch, Pierce, Fenner & Smith Incorporated 225 Liberty Street New York, New York 10080 as representatives (the "U.S. Representatives") of the several underwriters listed on Schedule A hereto Dear Ladies and Gentlemen: The Howard Heinz Endowment, Vira I. Heinz Endowment, Heinz Family Foundation, H. John Heinz III Revocable Trust No. 1, John Heinz III Descendants Trust (No. 1), H.J. Heinz II Family Trust and H.J. Heinz II Charitable and Family Trust (collectively, the "Selling Shareholders") severally propose to sell to the several underwriters named in Schedule A (the "Underwriters") an aggregate of 10,200,000 shares (the "Firm Shares") of Common Stock, par value $0.25 per share (the "Common Stock"), of H.J. Heinz Company, a Pennsylvania corporation (the "Company"). In addition, solely for the purpose of covering overallotments, if any, the Selling Shareholders severally propose to sell to the Underwriters, at the Underwriters' option, an aggregate of up to 1,912,500 additional shares of Common Stock (the "Additional Shares"). The Additional Shares and the Firm Shares are collectively referred to as the "Shares". The Shares are described in the Prospectus which is referred to below. It is understood and agreed to by all parties that the Company and the Selling Shareholders are concurrently entering into an underwriting agreement (the "International Underwriting Agreement") providing for the sale by the Selling Shareholders of an aggregate of 2,550,000 shares of Common Stock, (the "International Shares"), through certain underwriters outside the United States and Canada (the "International Underwriters"), for whom Lazard Brothers & Co. Limited, Dillon Read & Co. Inc. and Merrill Lynch International Limited are acting as representatives (the "International Representatives"). Anything herein or therein to the contrary notwithstanding, the respective closings under this Agreement and the International Underwriting Agreement are hereby expressly made conditional on one another. The Underwriters hereunder and the International Underwriters are simultaneously entering into an Agreement Between U.S. and International Underwriters (the "Agreement Between U.S. and International Underwriters") which provides, among other things, for the transfer of shares of Common Stock between the two syndicates and for consultation by the International Representatives with the U.S. Representatives. Two forms of prospectus are to be used in connection with the offering and sale of shares of Common Stock contemplated by the foregoing, one relating to the Shares hereunder and the other relating to the International Shares. The latter form of prospectus will be identical to the former except for the outside front and back cover pages as included in the registration statement and amendments thereto. References herein to any prospectus, whether in preliminary or final form, and whether amended or supplemented, shall include both the international and U.S. versions thereof. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the "Act"), with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3, including prospectuses relating to the Shares and the International Shares, which incorporates by reference documents that the Company has filed in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the "Exchange Act"). The Company has furnished to you, for use by the Underwriters and by dealers, copies of one or more preliminary prospectuses and all documents incorporated by reference therein (collectively, the "Preliminary Prospectus"). Except where the context otherwise requires, the registration statement as in effect at the time of execution of this Agreement or, if the registration statement is not yet effective, as amended when it becomes effective, including all documents filed as a part thereof or incorporated by reference therein, and including any information contained in a prospectus subsequently filed with the Commission pursuant to Rule 424(b) or Rule 434(c) under the Act and deemed to be part of the registration statement at the time of 2 effectiveness pursuant to Rule 430A under the Act and any "abbreviated term sheet" described in Rule 434(c) under the Act that is deemed to be a part of such registration statement pursuant to Rule 434(d) under the Act (a "Term Sheet"), is herein called the "Registration Statement", and the prospectus, including all documents incorporated therein by reference, any Term Sheet which, in addition to the related preliminary prospectus, constitutes a part thereof pursuant to Rule 434(a) under the Act and any prospectus required pursuant to Rule 434(c)(2) of the Act (the "Integrated Prospectus"), each in the form filed by the Company with the Commission pursuant to Rule 424(b) under the Act or, if none of such filings is required, in the form of final prospectus included in the Registration Statement at the time it became effective, is herein called the "Prospectus". Any reference herein to the "date" of a Prospectus that includes a Term Sheet shall mean the date of such Term Sheet. The Selling Shareholders and the Underwriters agree as follows: 1. Sale and Purchase. On the basis of the representations and ----------------- warranties and the other terms and conditions herein set forth, each of the Selling Shareholders, severally and not jointly, agrees to sell to the respective Underwriters the number of Firm Shares set forth opposite the name of such Selling Shareholder on Schedule B and each of the Underwriters, severally and not jointly, agrees to purchase from the Selling Shareholders the number of Firm Shares set forth opposite the name of such Underwriter on Schedule A, at a purchase price of $__ per Share. You may release the Firm Shares for public sale promptly after this Agreement becomes effective. You may from time to time increase or decrease the public offering price after the initial offering to such extent as you may determine. In addition, on the basis of the representations and warranties and the other terms and conditions herein set forth, each of the Selling Shareholders, severally and not jointly, grants to the several Underwriters an option to purchase, and the Underwriters shall have the right to purchase, severally and not jointly, from the Selling Shareholders all or a portion of the Additional Shares set forth opposite the name of such Selling Shareholder on Schedule B as may be necessary to cover overallotments made in connection with the offering of the Firm Shares, at the same purchase price per share to be paid by the several Underwriters to the Selling Shareholders for the Firm Shares. This option may be exercised at any time (but not 3 more than once) on or before the thirtieth day following the date hereof, by written notice to the Selling Shareholders. Such notice shall set forth the aggregate number of Additional Shares as to which the option is being exercised, and the date and time when the Additional Shares are to be delivered (such date and time being herein referred to as the "additional time of purchase"); provided, however, that the additional time of purchase shall not be earlier -------- ------- than the time of purchase (as defined below) nor earlier than the second business day/1/ after the date on which the option shall have been exercised nor later than the eighth business day after the date on which the option shall have been exercised. The number of Additional Shares to be purchased by each Underwriter shall be the number which bears the same proportion to the aggregate number of Additional Shares being purchased as the number of Firm Shares set forth opposite the name of such Underwriter on Schedule A bears to the total number of Firm Shares (subject, in each case, to such adjustment as you may determine to eliminate fractional shares). The number of Additional Shares to be sold by each Selling Shareholder shall be the number which bears the same proportion to the aggregate number of Additional Shares being purchased as the number of Additional Shares set forth opposite the name of such Selling Shareholder on Schedule B bears to the total number of Additional Shares available for sale under the over-allotment option (subject, in each case, to such adjustment as you may determine to eliminate fractional shares). 2. Payment and Delivery. Payment of the purchase price for the Firm -------------------- Shares shall be made to the Selling Shareholders by certified or official bank checks, in New York Clearing House funds, at the office of Dillon, Read & Co. Inc. in New York City, against delivery of the Firm Shares for the respective accounts of the Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York City time, on August __, 1995 (unless another time shall be agreed to by you and the Selling Shareholders or unless postponed in accordance with the provisions of Section 10). The time at which such payment and delivery are actually made is called the "time of purchase". The Firm Shares shall be delivered in such names and in such denominations as you shall specify on the second business day preceding the time of purchase. Payment of the purchase price for the Additional Shares shall be made at the additional time of purchase in ----------------------- /1/As used herein, "business day" shall mean a day on which the New York Stock Exchange is open for trading. 4 the same manner and at the same office as the payment for the Firm Shares. The Additional Shares shall be delivered in such names and in such denominations as you shall specify on the second business day preceding the additional time of purchase. 3. Representations and Warranties of the Company. The Company --------------------------------------------- represents and warrants to each of the Underwriters that: (a) Each Preliminary Prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Act and in each case used to offer to sell the Shares (as defined in the Act), complied when so filed in all material respects with the Act; when the Registration Statement becomes or became effective and at all times subsequent thereto up to the time of purchase and the additional time of purchase, the Registration Statement and the Prospectus, and any supplements or amendments thereto, complied and will comply in all material respects with the provisions of the Act; and the Registration Statement at all such times did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and the Prospectus at all such times did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company makes no representation or -------- ------- warranty with respect to any statement contained in the Registration Statement or the Prospectus in reliance upon and in conformity with information concerning (i) the Underwriters that was furnished in writing by or on behalf of any Underwriter through you to the Company expressly for use in the Registration Statement or the Prospectus and set forth in the section of the Registration Statement and the Prospectus entitled "Underwriting" or (ii) the Selling Shareholders that was furnished in writing by or on behalf of any Selling Shareholder to the Company expressly for use in the Registration Statement or the Prospectus and set forth in the section of the Registration Statement and the Prospectus entitled "Selling Shareholders"; the documents incorporated by reference in the Prospectus, at the time they were filed with the Commission, 5 complied in all material respects with the requirements of the Exchange Act. (b) All of the issued and outstanding shares of capital stock of the Company (including the Shares) have been duly authorized and validly issued and are fully paid and nonassessable; the Company has been duly organized and is validly existing as a corporation in good standing under the laws of the Commonwealth of Pennsylvania with full power and authority to own its properties and conduct its business as described in the Registration Statement and the Prospectus and to execute and deliver this Agreement. (c) Each of the Company and its subsidiaries listed in Annex I hereto (the "Material Subsidiaries") is duly qualified or licensed by, and is in good standing in, each jurisdiction where the nature of its business or the character of its properties makes such qualification necessary, except for such jurisdictions where the failure, individually or in the aggregate, to be so qualified or licensed would not be reasonably likely to have a material adverse effect on the Company and its subsidiaries taken as a whole; each of the Material Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation with full power and authority to own its properties and conduct its business as described in the Registration Statement and Prospectus. (d) Neither the Company nor any of the Material Subsidiaries is in breach of, or in default under (nor has any event occurred which with notice, lapse of time or both would constitute a breach of, or default under), its charter or bylaws, or in the performance or observance of any obligation, agreement, covenant or condition contained in any license, indenture, lease, mortgage, deed of trust, bank loan or credit agreement, supply agreement or other agreement or instrument to which the Company or any of the Material Subsidiaries is a party or by which any of them is bound, which breach or default would be reasonably likely to have a material adverse effect on the Company and its subsidiaries taken as a whole; and the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby will not conflict with, or result in any breach of, or constitute a default under (or constitute any event which with notice, lapse of time or both would constitute a breach 6 of, or default under), any provision of the charter or bylaws of the Company or any of the Material Subsidiaries or under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement, supply agreement or other agreement or instrument to which the Company or any of the Material Subsidiaries is a party or by which any of them or their properties may be bound or affected that is material to the Company and its subsidiaries, as a whole, or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to the Company or any of the Material Subsidiaries. (e) Except as set forth in Annex I, all of the outstanding shares of capital stock of, or other equity interests in, each of the Material Subsidiaries are owned by the Company free and clear of any pledge, lien, encumbrance, security interest, preemptive right or other claim and except for the Material Subsidiaries no other domestic subsidiary accounted for more than 2% of the consolidated net revenues of the Company and its consolidated subsidiaries as reported in the Company's Annual Report on Form 10-K for the year ended May 3, 1995 as filed with the Commission. (f) This Agreement has been duly authorized, executed and delivered by the Company. (g) The capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus. (h) No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required to be obtained by the Company in connection with the sale of the Shares as contemplated hereby, other than registration of the Shares under the Act and any necessary qualifications under the federal securities or "blue sky" laws of the various jurisdictions in which the Shares are being offered by the Underwriters. (i) Except as set forth in the Agreement for the Registration of Stock among the Company and the Selling Shareholders dated June 22, 1995 as amended by letter agreement dated August 2, 1995 (as amended, the "Agreement for the Registration of Stock") and pursuant to a Registration Rights Agreement dated as of May 2, 7 1995 between the Company and AT&T Investment Management Corp., no person has the right, contractual or otherwise, to cause the Company to issue to it, or register pursuant to the Act, any securities of the Company in consequence of the sale of the Shares to the Underwriters hereunder. (j) Coopers & Lybrand, L.L.P., whose report on the consolidated financial statements of the Company and its consolidated subsidiaries are incorporated by reference in the Registration Statement and the Prospectus, are independent public accountants with respect to the Company as required by the Act and the applicable published rules and regulations thereunder. (k) Each of the Company and the Material Subsidiaries has all necessary licenses, authorizations, consents and approvals and has made all necessary filings required under any federal, state, local or foreign law, regulation or rule, and has obtained all necessary authorizations, consents, licenses and approvals from other persons, in order to conduct its business, except where the absence thereof would not be reasonably likely to have a material adverse effect on the Company and its subsidiaries taken as a whole; neither the Company nor any of the Material Subsidiaries is in violation of, or in default under, any such license, authorization, consent or approval or any federal, state, local or foreign law, regulation or rule or any decree, order or judgment applicable to the Company or any of the Material Subsidiaries the result of which would be reasonably likely to have a material adverse effect on the Company and its subsidiaries taken as a whole. (l) There is no action, suit or proceeding pending or threatened in writing against the Company or any of the Material Subsidiaries or any of their properties, at law or in equity, or before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency that would be reasonably likely to result in a judgment, decree or order having a material adverse effect on the Company and its subsidiaries taken as a whole or that is required to be described in the Registration Statement or Prospectus and is not so described. (m) The Company and its Material Subsidiaries are in compliance with any and all applicable laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws") except where 8 such noncompliance with Environmental Laws would not singly or in the aggregate be reasonably likely to have a material adverse effect on the Company and its subsidiaries taken as a whole. (n) The Company has complied with all provisions of Section 517.075, Florida Statutes relating to doing business with the Government of Cuba or with any person or affiliate located in Cuba. (o) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, and except as may be otherwise stated in the Registration Statement or the Prospectus, there has not been (A) any material adverse change in the properties, assets, operations, business or financial condition of the Company and its subsidiaries taken as a whole, (B) any transaction, that is material to the Company and its subsidiaries taken as a whole, contemplated or entered into by the Company or any of its subsidiaries or (C) any obligation, contingent or otherwise, directly or indirectly incurred by the Company or any of its subsidiaries that is material to the Company and its subsidiaries taken as a whole. 4. Representations and Warranties of the Selling Shareholders. Each ---------------------------------------------------------- Selling Shareholder severally and not jointly represents and warrants to each Underwriter that: (a) Such Selling Shareholder is, and at the time of delivery of the Shares to be sold by such Selling Shareholder will be, the owner of the number of Shares to be sold by such Selling Shareholder pursuant to this Agreement and, at the time of delivery thereof, will have valid title to such Shares, and upon delivery of and payment for such Shares the Underwriters will acquire valid title to such Shares free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title. (b) Such Selling Shareholder has, and at the time of delivery of such Shares will have, full legal right, power and capacity, and any authorization or approval required by law to sell, assign, transfer and deliver such Shares in the manner provided in this Agreement. (c) The Irrevocable Instruction by such Selling Shareholder to Mellon Bank, N.A., (the 9 "Irrevocable Instruction") has been duly executed and delivered by such Selling Shareholder and is a legal, valid and binding instruction of such Selling Shareholder enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and general principles of equity, whether considered in a proceeding in equity or at law. (d) Such Selling Shareholder has duly and irrevocably authorized Mellon Bank, N.A., on behalf of such Selling Shareholder, to deliver the Shares to be sold by such Selling Shareholder immediately upon receipt of payment for the Shares pursuant hereto. (e) The sale of the Shares by such Selling Shareholder pursuant hereto is not prompted by any material adverse information concerning the Company; and all information furnished in writing by or on behalf of such Selling Shareholder expressly for use in the Registration Statement or the Prospectus, and any supplement or amendment thereto, is and will be when the Registration Statement became effective and at all times subsequent thereto up to the time of purchase and the additional time of purchase, true and correct and complete and at all such times did not and will not contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (f) The execution, delivery and performance of this Agreement and the Irrevocable Instruction and the consummation of the transactions contemplated hereby and thereby will not conflict with, or result in any breach of or constitute a default under (or constitute any event which with notice, lapse of time or both would constitute a breach of, or default under), any provision of the charter or bylaws or trust agreement (as the case may be), of such Selling Shareholder or under any provision of any indenture, mortgage, deed of trust, bank loan or credit agreement, or other agreement or instrument to which such Selling 10 Shareholder is a party or by which such Selling Shareholder or any of its properties may be bound or affected or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to such Selling Shareholder. (g) No approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the sale of the Shares contemplated hereby, other than registration of the Shares under the Act and any necessary qualifications under the federal securities or "blue sky" laws of the various jurisdictions in which the Shares are being offered by the Underwriters. 5. Certain Covenants of the Company. The Company hereby agrees: -------------------------------- (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Shares for offering and sale under the securities or blue sky laws of such states as you may designate and to maintain such qualifications in effect as long as required for the distribution of the Shares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except for service of process with respect to the offering and sale of the Shares) or to subject itself to taxation in any such jurisdiction; promptly to advise you of the receipt by the Company of any notification with respect to the suspension of the qualification of the Shares for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose; and to use its best efforts to obtain the withdrawal of any order of suspension at the earliest practicable moment; (b) to make available in New York City, as soon as practicable after the Registration Statement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus and documents incorporated by reference therein (or of the Prospectus as amended or supplemented if the Company shall have made any amendment or supplement thereto after the effective date of the Registration Statement), including any Term Sheet or Integrated Prospectus, as the Underwriters may reasonably request for the purposes contemplated by the Act; 11 (c) to advise you promptly and (if requested by you) to confirm such advice in writing, (i) when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective and (ii) when the Prospectus, including any Term Sheet or Integrated Prospectus, is filed with the Commission pursuant to Rule 424(b) under the Act, if required under the Act (which the Company agrees to file in a timely manner under such Rule); (d) to advise you promptly, confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information with respect thereto, or of notice of institution of proceedings for or the entry of a stop order suspending the effectiveness of the Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise you promptly of any proposal to amend or supplement the Registration Statement or the Prospectus, including by filing any document that would be incorporated therein by reference, and to file no such amendment or supplement to which you shall reasonably object in writing; (e) for a period of thirty days following the date of the Prospectus or until the conclusion of the distribution of the Shares, whichever is sooner, to advise the Underwriters promptly of the happening of any event known to the Company that, in the reasonable judgment of the Company, would require the making of any change in the Prospectus then being used, or in the information incorporated therein by reference, so that the Prospectus, as then supplemented, would not include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading and, during such time, promptly to prepare and furnish, at the Selling Shareholders' expense, to the Underwriters such amendments or supplements to such Prospectus as may be necessary to reflect any such change in such quantities as reasonably requested by the Underwriters, and to furnish to you a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (f) to make generally available to its security holders, and to deliver to you, an earnings 12 statement of the Company (which need not be audited and which will satisfy the provisions of Section 11(a) of the Act including, at the option of the Company, Rule 158) covering a period of at least 12 months beginning after the effective date of the Registration Statement but ending not later than 15 months after the effective date of the Registration Statement, as soon as is reasonably practicable after the termination of such 12-month period; and (g) to furnish to you three signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments thereto (including all exhibits thereto and documents incorporated by reference therein) and a sufficient number of additional conformed copies of the foregoing (without exhibits) for distribution of a copy of each to the other Underwriters. 6. Certain Covenants of the Selling Shareholders. --------------------------------------------- Each Selling Shareholder, severally, and not jointly, agrees with each Underwriter and the Company that; (a) such Selling Shareholder will not offer, pledge, sell, contract to sell, grant any option to purchase, transfer or otherwise dispose of, directly or indirectly, any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock or warrants or other rights to purchase Common Stock except for the sales to you pursuant to this Agreement and the International Underwriting Agreement, for a period commencing on the date hereof and continuing for 90 days after the date of the Prospectus, without the prior written consent of Dillon, Read & Co. Inc. and Lazard Freres & Co. LLC; and (b) whether or not the transactions contemplated in this Agreement are consummated or this Agreement is otherwise terminated, each Selling Shareholder shall be severally, and not jointly, liable (in proportion to the number of shares of Common Stock set forth opposite such Selling Shareholder's name in Schedule B hereto) to pay (A) all expenses, fees and taxes (other than fees and disbursements of your counsel except as set forth under clause (iii) below) in connection with (i) the preparation and filing of the Registration Statement, each Preliminary Prospectus, the Prospectus (including any Term Sheet or 13 Integrated Prospectus) and any amendment or supplement thereto, and the printing and furnishing of copies of each thereof to you and to dealers (including the costs of mailing and shipment) as may be reasonably requested for use in connection with the offer and sale of the Shares, (ii) the sale and delivery of the Shares, including any transfer taxes payable in connection with the transfer of the Shares to the Underwriters and fees and expenses of Mellon Bank N.A. and the Company's transfer agent and registrar, (iii) the qualification of the Shares for offering and sale under state laws as aforesaid (including legal fees and filing fees and other disbursements of your counsel in connection therewith and the preparation of blue sky surveys) and the printing and furnishing of copies of any blue sky surveys to you and to dealers, (iv) any filing for review of the public offering of the Shares by the National Association of Securities Dealers, Inc., (v) the "road show" presentation to potential investors, and (vi) all other expenses incident to the performance of the Company's and the Selling Shareholders' other obligations hereunder, including the fees and disbursements of the Company's counsel and accountants and the Selling Shareholders' counsel and (B) any other Registration Expenses as defined in the Agreement for the Registration of Stock. 7. Reimbursement of Underwriters' Expenses. If the Shares are not --------------------------------------- delivered for any reason other than as a result of a (i) default by one or more of the Underwriters in its or their respective obligations hereunder or (ii) the occurrence of any event specified in the second paragraph of Section 9 hereof, the Selling Shareholders shall reimburse the Underwriters for all of their out- of-pocket expenses, including the fees and disbursements of their counsel reasonably incurred by them in connection with the offering of the Shares. 8. Conditions of Underwriters' Obligations. The several obligations --------------------------------------- of the Underwriters hereunder are subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders on the date hereof and at the time of purchase (and the several obligations of the Underwriters at the additional time of purchase are subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders on the date hereof and at the time of purchase and at the additional time of purchase, as the case may be), the performance by each of the Company and the Selling Shareholders of its and their obligations hereunder and to the following conditions: 14 (a) The Company shall furnish to you at the time of purchase and at the additional time of purchase, as the case may be, an opinion of Paul, Weiss, Rifkind, Wharton & Garrison, counsel for the Company, addressed to the Underwriters, and dated the time of purchase or the additional time of purchase, as the case may be, with reproduced copies for each of the other Underwriters and in form reasonably satisfactory to Davis Polk & Wardwell, counsel for the Underwriters, stating that: (i) the Registration Statement has become effective under the Act and, to the best of such counsel's knowledge, no stop order proceedings with respect thereto are pending or threatened under the Act; (ii) the capital stock of the Company, including the Shares, conforms in all material respects to the description thereof contained in the Registration Statement and the Prospectus; (iii) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required to be obtained by the Company in connection with the sale of the Shares as contemplated hereby other than registration of the Shares under the Act (except such counsel need express no opinion as to any necessary qualification under the securities laws of any foreign country or the state securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters or the rules and regulations of the National Association of Securities Dealers, Inc.); (iv) the statements (A) in the Prospectus under the captions "Description of Capital Stock" and (B) in the Registration Statement in Item 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein; (v) the Company is not an "investment company" or an entity "controlled" by an "investment company", as such terms are defined in the Investment Company Act of 1940, as amended; 15 (vi) the documents incorporated by reference in the Registration Statement and Prospectus, when they were filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), complied as to form in all material respects with the Exchange Act (except as to the financial statements and schedules and other financial and statistical data contained or incorporated by reference therein, as to which such counsel need express no opinion); (vii) the Registration Statement and the Prospectus (except as to the financial statements and schedules and other financial and statistical data contained or incorporated by reference therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; and (viii) nothing has come to the attention of such counsel that causes them to believe that the Registration Statement or any amendment thereto at the time such Registration Statement or amendment became effective contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any supplement thereto at the date of such Prospectus or such supplement, and at all times up to and including the time of purchase contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and schedules and other financial and statistical data included or incorporated by reference in the Registration Statement or Prospectus). The opinion furnished pursuant to this Section 8(a) shall be subject to customary exceptions, assumptions and qualifications. (b) The Company shall furnish to you at the time of purchase and at the additional time of purchase, as the case may be, an opinion of Lawrence J. McCabe, Esq., Senior Vice President - General Counsel of the Company, addressed to the Underwriters, and dated the 16 time of purchase or the additional time of purchase, as the case may be, with reproduced copies for each of the other Underwriters and in form reasonably satisfactory to Davis Polk & Wardwell, counsel for the Underwriters, stating that: (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the Commonwealth of Pennsylvania, with full corporate power and authority to own its properties and conduct its business as described in the Registration Statement and the Prospectus and to execute and deliver this Agreement; (ii) each of the Company and the Material Subsidiaries is duly qualified or licensed to do business by, and is in good standing as a foreign corporation in, each jurisdiction where the nature of its business or the character of its properties makes such qualification necessary, except for such jurisdictions where the failure, individually or in the aggregate, to be so licensed or qualified would not be reasonably likely to have a material adverse effect on the Company and its subsidiaries taken as a whole; each of the Material Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation with full power and authority to own its properties and conduct its business as described in the Registration Statement and Prospectus; (iii) the Registration Statement has become effective under the Act and, to the best of such counsel's knowledge, no stop order proceedings with respect thereto are pending or threatened under the Act; (iv) this Agreement has been duly authorized, executed and delivered by the Company; (v) the Shares have been duly authorized and validly issued and are fully paid, nonassessable and free of statutory and contractual preemptive rights; (vi) the capital stock of the Company, including the Shares, conforms in all material 17 respects to the description thereof contained in the Registration Statement and the Prospectus; (vii) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required to be obtained by the Company in connection with the sale of the Shares as contemplated hereby other than registration of the Shares under the Act (except such counsel need express no opinion as to any necessary qualification under the securities laws of any foreign country or the state securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters or the rules and regulations of the National Association of Securities Dealers, Inc.); (viii) the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby do not and will not conflict with, or result in any breach of, or constitute a default under (or constitute any event which with notice, lapse of time or both would constitute a breach of or default under), any provision of the charter or bylaws of the Company or any of the Material Subsidiaries, or under any provision of any license, indenture, mortgage, deed of trust, bank loan or credit agreement or other agreement or instrument to which the Company or any of the Material Subsidiaries is a party or by which the Company or any of the Material Subsidiaries or their properties are bound or affected that is material to the Company and its subsidiaries as a whole, or under federal law or the laws of the Commonwealth of Pennsylvania, or under any other state, local or foreign law, regulation or rule of which such counsel has been made specifically aware or which such counsel has been advised in writing (by counsel authorized to practice law in the relevant jurisdiction) is so applicable, or any decree, judgment or order known by such counsel to be applicable to the Company or any of the Material Subsidiaries; (ix) all contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed; 18 (x) the statements (A) in the Prospectus under the captions "Description of Capital Stock" and (B) in the Registration Statement in Item 15, in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein; (xi) after due inquiry, such counsel does not know of any action, suit or proceeding pending or threatened in writing against the Company or any of the Material Subsidiaries or any of their properties, at law or in equity, or before or by any federal, state, local or governmental or regulatory commission, board, body, authority or agency that would be reasonably likely to result in a judgment or decree that would have a material adverse effect on the Company and its subsidiaries taken as a whole or that is required to be described in the Registration Statement or the Prospectus and is not so described; (xii) the documents incorporated by reference in the Registration Statement and Prospectus, when they were filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), complied as to form in all material respects with the Exchange Act (except as to the financial statements and schedules and other financial and statistical data contained or incorporated by reference therein, as to which such counsel need express no opinion); (xiii) the Registration Statement and the Prospectus (except as to the financial statements and schedules and other financial and statistical data contained or incorporated by reference therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; and (xiv) nothing has come to the attention of such counsel that causes him to believe that the Registration Statement or any amendment thereto at the time such Registration Statement or amendment became effective contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus or any supplement thereto at the date of such Prospectus or such supplement, 19 and at all times up to and including the time of purchase contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and schedules and other financial and statistical data included or incorporated by reference in the Registration Statement or Prospectus). The opinion furnished pursuant to this Section 8(b) shall be subject to customary exceptions, assumptions and qualifications. (c) You shall have received at the time of purchase and at the additional time of purchase, as the case may be, an opinion of Dewey Ballantine, counsel to the Selling Shareholders, addressed to the Underwriters, and dated the time of purchase or the additional time of purchase, as the case may be, with reproduced copies for each of the other Underwriters and in form satisfactory to Davis Polk & Wardwell, counsel for the Underwriters, stating that: (i) the Irrevocable Instruction has been duly executed and delivered by each of the Selling Shareholders; the Irrevocable Instruction is a legal, valid and binding irrevocable instruction of each of the Selling Shareholders authorizing Mellon Bank, N.A. to deliver the Shares immediately upon receipt of payment for the Shares pursuant hereto, which irrevocable instruction is enforceable in accordance with its terms, except, as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and general principles of equity, whether considered in a proceeding in equity or law; (ii) each of the Selling Shareholders has full legal right, power and capacity, and to the best of such counsel's knowledge has obtained any authorization or approval required by law (other than those imposed by the Act and the securities or blue sky laws of certain jurisdictions and the rules and regulations of the National Association of Securities Dealers, Inc.), to sell, assign, 20 transfer and deliver the Shares to be sold by such Selling Shareholder in the manner provided in this Agreement; (iii) upon receipt of payment by the Selling Shareholders and delivery of the Shares to be sold by the Selling Shareholders pursuant hereto, title thereto will pass to the Underwriters severally, free and clear of any claim, lien, encumbrance, security interest, community property right, restriction on transfer or other defect in title, assuming the Underwriters purchased such Shares for value in good faith without notice of any adverse claim; (iv) to the best of such counsel's knowledge, the execution, delivery and performance of this Agreement and the Irrevocable Instruction and the consummation of the transactions contemplated hereby and thereby will not conflict with, or result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would constitute a breach of, or default under), any provision of the charter or bylaws or trust agreement, as the case may be of such Selling Shareholder or under any provision of any indenture, mortgage, deed of trust, bank loan or credit agreement, or other agreement or instrument to which such Selling Shareholder or by which such Selling Shareholder or any of its properties may be bound or affected or under any federal, state, local or foreign law, regulation or rule or any decree, judgment or order applicable to such Selling Shareholder; (v) no approval, authorization, consent or order of or filing with any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency is required in connection with the sale of the Shares as contemplated hereby other than registration of the Shares under the Act (except such counsel need express no opinion as to any necessary qualification under the securities laws of any foreign country or the state securities or blue sky laws of the various jurisdictions in which the Shares are being offered by the Underwriters and the rules and regulations of the National Association of Securities Dealers, Inc.); and (vi) the statements in the Prospectus under the caption "Selling Shareholders" in so far as 21 such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings and fairly summarize the matters referred to therein. In rendering such opinion Dewey Ballantine may, to the extent that the laws of the Commonwealth of Pennsylvania are relevant to such opinion, with your approval rely on an opinion of Pennsylvania counsel reasonably satisfactory to you. The opinion furnished pursuant to this Section 8(c) shall be subject to customary exceptions, assumptions and qualifications. (d) You shall have received from Coopers & Lybrand L.L.P. and Arthur Andersen LLP letters dated, respectively, the date of this Agreement and the time of purchase and additional time of purchase, as the case may be, and addressed to the Underwriters (with reproduced copies for each of the Underwriters) in the forms presented upon execution of this Agreement. (e) You shall have received at the time of purchase and at the additional time of purchase, as the case may be, an opinion of Davis Polk & Wardwell and dated the time of purchase or the additional time of purchase, as the case may be, in form and substance satisfactory to you. (f) No amendment or supplement to the Registration Statement or the Prospectus, including documents deemed to be incorporated by reference therein and any Term Sheet or Integrated Prospectus, shall be filed prior to the time the Registration Statement becomes effective, to which you shall have reasonably objected in writing. (g) The Registration Statement shall become effective at or before 5:00 P.M., New York City time, on the date of this Agreement and, if Rule 430A or Rule 434 under the Act is used, the Prospectus including any Term Sheet constituting a part thereof, shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:00 P.M., New York City time, on the second full business day after the date of this Agreement; provided, however, that any Integrated Prospectus shall have -------- ------- been filed on or prior to the date on which a confirmation is sent or given; 22 (h) Prior to the time of purchase or the additional time of purchase, as the case may be: (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement and all amendments thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) the Prospectus and all amendments or supplements thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (i) Between the time of execution of this Agreement and the time of purchase or the additional time of purchase, as the case may be, there has not been (i) any material and adverse change, present or prospective, in the properties, assets, operations, business or condition of the Company and its subsidiaries taken as a whole, other than as described in the Registration Statement and the Prospectus or incorporated therein by reference, (ii) any transaction that is material to the Company and its subsidiaries taken as a whole contemplated or entered into by the Company or any of its subsidiaries, other than as described in the Registration Statement and the Prospectus, or (iii) any obligation, contingent or otherwise, directly or indirectly, incurred by the Company or any of its subsidiaries that is material to the Company and its subsidiaries taken as a whole, other than as described in the Registration Statement and the Prospectus. (j) The Company, at the time of purchase or additional time of purchase, as the case may be, will deliver to you a certificate of two of its executive officers to the effect that the representations and warranties of the Company set forth in this Agreement are true and correct as of each such date and the conditions set forth in Section 8(h) and Section 8(i) have been met. (k) The Company and the Selling Shareholders shall have furnished to you such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement or the 23 Prospectus as of the time of purchase and the additional time of purchase, as the case may be, as you reasonably may request. (l) The Company and the Selling Shareholders shall have performed such of their respective obligations under this Agreement as are to be performed by the terms hereof at or before the time of purchase and at or before the additional time of purchase, as the case may be, and the closing of the purchase and sale of the International Shares shall occur concurrently with the closing of the purchase and sale of the Shares hereunder. 9. Effective Date of Agreement; Termination. This Agreement shall ---------------------------------------- become effective (i) if neither Rule 430A nor Rule 434 under the Act is used, when you shall have received notification of the effectiveness of the Registration Statement, or (ii) if either Rule 430A or Rule 434 under the Act is used, when the parties hereto have executed and delivered this Agreement. The obligations of the several Underwriters hereunder shall be subject to termination in your absolute discretion if, at any time prior to the time of purchase or, with respect to the purchase of any Additional Shares, the additional time of purchase, as the case may be, trading in securities generally on the New York Stock Exchange shall have been suspended or minimum prices shall have been established on the New York Stock Exchange, or if a general banking moratorium shall have been declared either by the United States or New York State authorities, or if the United States shall have declared war in accordance with its constitutional processes or there shall have occurred any material outbreak or escalation of hostilities or other national or international calamity or crisis of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in your judgment makes it impracticable to market the Shares or the International Shares. If you elect to terminate this Agreement as provided in this Section 9, the Company, the Selling Shareholders and each other Underwriter shall be notified promptly by written notice transmitted by facsimile and confirmed by written notice sent by registered mail, return receipt requested. If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not carried out by the Underwriters for any reason permitted under this Agreement 24 or if such sale is not carried out because the Company or the Selling Shareholders, as the case may be, shall be unable to comply with any of the terms of this Agreement, neither the Company nor the Selling Shareholders shall be under any obligation or liability under this Agreement (except to the extent provided in Sections 6(b), 7 and 11), and the Underwriters shall be under no obligation or liability to the Company and the Selling Shareholders under this Agreement (except to the extent provided in Section 11). 10. Increase in Underwriters' Commitments. If any Underwriter shall ------------------------------------- default in its obligation to take up and pay for the Firm Shares to be purchased by it hereunder and if the number of Firm Shares which all Underwriters so defaulting shall have agreed but failed to take up and pay for does not exceed 10% of the total number of Firm Shares, the non-defaulting Underwriters shall take up and pay for (in addition to the aggregate principal amount of Firm Shares they are obligated to purchase pursuant to Section 1) the number of Firm Shares agreed to be purchased by all such defaulting Underwriters as hereinafter provided. Such Shares shall be taken up and paid for by such non-defaulting Underwriter or Underwriters in such amount or amounts as you may designate with the consent of each Underwriter so designated or, in the event no such designation is made, such Shares shall be taken up and paid for by all non- defaulting Underwriters pro rata in proportion to the aggregate number of Firm Shares set opposite the names of such non-defaulting Underwriters in Schedule A. Without relieving any defaulting Underwriter from its obligations hereunder, the Selling Shareholders agree with the non-defaulting Underwriters that they will not sell any Firm Shares hereunder unless all of the Firm Shares are purchased by the Underwriters (or by substituted underwriters selected by you with the approval of the Selling Shareholders or selected by the Selling Shareholders with your approval). If a new Underwriter or Underwriters are substituted by the Underwriters or by the Selling Shareholders for a defaulting Underwriter or Underwriters in accordance with the foregoing provision, the Selling Shareholders or you shall have the right to postpone the time of purchase for a period not exceeding five business days in order that any necessary change in the Registration Statement and the Prospectus and other documents may be effected. 25 The term Underwriter as used in this Agreement shall refer to and include any Underwriter substituted under this Section 10 with like effect as if such substituted Underwriter had originally been named in Schedule A. 11. Indemnity by the Company, the Selling Shareholders and the ---------------------------------------------------------- Underwriters. ------------ (a) The Company agrees to indemnify, defend and hold harmless each Underwriter, each person that controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and each Underwriter's agents, employees, officers and directors and the agents, employees, officers and directors of any such controlling person (collectively, the "Underwriter indemnified parties") from and against any and all losses, claims, damages, judgments, liabilities and expenses (including the reasonable fees and expenses of counsel and other expenses in connection with investigating, defending or settling any such action or claim) which, jointly or severally, any Underwriter indemnified party may incur as they are incurred (and regardless of whether such Underwriter indemnified party is a party to the litigation, if any) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or any Preliminary Prospectus, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, judgments, liabilities or expenses arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement or omission based upon and in conformity with (i) information with respect to any Underwriter furnished in writing by or on behalf of any Underwriter through you to the Company expressly for use therein with reference to such Underwriter or (ii) information with respect to any Selling Shareholder furnished in writing by any Selling Shareholder to the Company expressly for use therein with reference to such Selling Shareholder and provided that the Company shall not be liable to any Underwriter or any person that controls such Underwriter or such Underwriter's agents, employees, officers or directors (or the agents, employees, officers or directors of any such controlling person) with respect to any Preliminary Prospectus to the extent that any such loss, claim, damage, judgment, liability or expense results from the fact that such Underwriter sold shares 26 to a person as to whom it shall be established that there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus (excluding documents incorporated by reference) or of the Prospectus as then amended or supplemented (excluding documents incorporated by reference) in any case where delivery is required by the Act if the Company has previously furnished copies thereof to such Underwriter and the loss, claims, damage, judgment, liability or expense of such Underwriter results from an untrue statement or omission of a material fact contained in, or omitted from, the Preliminary Prospectus which was corrected in the Prospectus (excluding documents incorporated by reference). This indemnity agreement will be in addition to any liability the Company otherwise may have. (b) Each Selling Shareholder, severally and not jointly agrees to indemnify, defend and hold harmless each Underwriter indemnified party from and against any and all losses, claims, damages, judgments, liabilities and expenses (including the fees and expenses of counsel and other expenses reasonably incurred in connection with investigating, defending or settling any such action or claim) which, jointly or severally, any Underwriter indemnified party may incur as they are incurred (and regardless of whether such Underwriter indemnified party is a party to the litigation, if any) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or any Preliminary Prospectus, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such losses, claims, damages, judgments, liabilities or expenses arise out of, or are based upon and in conformity with information with respect to such Selling Shareholder furnished in writing by such Selling Shareholder to the Company expressly for use therein with reference to such Selling Shareholder; provided, however, that such Selling Shareholder shall not be liable under -------- ------- this Section 11 in an amount exceeding the total price at which the Shares and the International Shares sold by such Selling Shareholder were offered to the public. This indemnity agreement will be in addition to any liability the Selling Shareholders otherwise may have. 27 (c) If any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any Underwriter indemnified party, with respect to which indemnity may be sought against the Company or the Selling Shareholders, as the case may be, pursuant to this Section 11, such Underwriter indemnified party shall promptly notify the Company or each Selling Shareholder, as the case may be, in writing, and the Company or the Selling Shareholders shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Underwriter indemnified party and payment of all fees and expenses; provided that the omission to notify the Company or the -------- Selling Shareholders shall not relieve them from any liability that they may have to any Underwriter indemnified party except to the extent that failure to give timely notice shall prejudice materially the defense of, or otherwise materially impair the indemnifying party's ability effectively to deal with, such action or proceeding. An Underwriter indemnified party shall have the right to employ separate counsel in any such action or proceeding and to assume the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter indemnified party unless (i) the employment of such counsel has been authorized in writing by the Company or the Selling Shareholders, as the case may be, (ii) the Company or the Selling Shareholders, as the case may be, have failed promptly to assume the defense and employ counsel satisfactory to the Underwriter indemnified party or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the Underwriter indemnified party and the Company or the Selling Shareholders, as the case may be, and such Underwriter indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Company or the Selling Shareholders (in which case the Company or the Selling Shareholders shall not have the right to assume the defense of such action on behalf of such Underwriter indemnified party), in any of which events such fees and expenses shall be borne by the Company or the Selling Shareholders, as the case may be, and reimbursed as they are incurred. It is understood, however, that the Company or the Selling Shareholders shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Underwriter indemnified parties, which firm shall be designated in writing by Dillon, 28 Read & Co. Inc. and Lazard Freres & Co. LLC, and that all such fees and expenses shall be reimbursed as they are incurred. None of the Company or the Selling Shareholders shall be liable for any settlement of any such action effected without the written consent of the Company or the Selling Shareholders, as the case may be (which consent shall not be unreasonably withheld or delayed), but if settled with the written consent of the Company or the Selling Shareholders, as the case may be, or if there is a final judgment with respect thereto, the Company or the Selling Shareholders, as the case may be, agree to indemnify and hold harmless each Underwriter indemnified party from and against any loss or liability by reason of such settlement or judgment. (d) Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement, and any person that controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the "Company indemnified parties") and each Selling Shareholder and any person that controls such Selling Shareholder within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the "Selling Shareholder indemnified parties")to the same extent as the foregoing indemnity from the Company and the Selling Shareholders to the Underwriter indemnified parties, but only with respect to information concerning such Underwriter furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use with respect to such Underwriter in the Registration Statement, any Preliminary Prospectus or the Prospectus. In case any action shall be brought against any Company indemnified party or any Selling Shareholder indemnified party based on the Registration Statement, any Preliminary Prospectus or the Prospectus and in respect of which indemnity may be sought against any Underwriter pursuant to this Section 11(d), such Underwriter shall have the rights and duties given to the Company and the Selling Shareholders by Section 11(c) (except that if the Company or the Selling Shareholders shall have assumed the defense thereof such Underwriter shall not be required to do so, but may employ separate counsel therein and participate in the defense thereof, provided that the fees and expenses of such separate counsel shall be at -------- the expense of such Underwriter), and the Company indemnified parties and the Selling Shareholder indemnified parties shall have the rights 29 and duties given to the Underwriter indemnified parties by Section 11(c). (e) If the indemnification provided for in this Section 11 is unavailable to or insufficient to hold harmless any Underwriter indemnified party or any Company indemnified party or any Selling Shareholder indemnified party, then the party required to indemnify such indemnified party under this Section 11, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, judgments, liabilities and expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Shareholders on the one hand and the Underwriters on the other hand from the offering of the Shares, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Selling Shareholders on the one hand and the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Selling Shareholders on the one hand and the Underwriters on the other hand shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Selling Shareholders bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company and the Selling Shareholders on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, by the Selling Shareholders or by the Underwriters, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, judgments, liabilities and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred 30 by such party in connection with investigating or defending any claim or action. The Company, the Selling Shareholders and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(e) were determined by pro rata allocation or by any other method of allocation (even if the Underwriters were treated as one entity for such purpose) that does not take account of the equitable considerations referred to in this Section 11(e). Notwithstanding the provisions of this Section 11(e), no Underwriter indemnified party shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by such Underwriter indemnified party and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter indemnified party otherwise has been required to pay by reason of such untrue statement or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute pursuant to this Section 11 are several in proportion to their respective underwriting commitments and are not joint. The statements under the caption "Underwriting" in the Prospectus, the last paragraph on the cover page of the Prospectus and the first paragraph on the third page of the Prospectus (to the extent such statements relate to an Underwriter) constitute the only information furnished to the Company in writing by such Underwriter expressly for use in the Registration statement, any Preliminary Prospectus or the Prospectus. (f) The indemnity and contribution agreements contained in this Section 11 and the representations, warranties and covenants of the Company and the Selling Shareholders contained in this Agreement shall remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter indemnified party or by or on behalf of any Company indemnified party or any Selling Shareholder indemnified party, and shall survive any termination of this Agreement or the issuance and delivery of the Shares. Subject to the provisions of Section 11(c) and Section 11(d), the Company, each 31 Selling Shareholder and each Underwriter agree promptly to notify the other of the commencement of any litigation or proceeding against it in connection with the issuance and sale of the Shares or in connection with the Registration Statement or the Prospectus. 12. Notices. Except as otherwise herein provided, all statements, ------- requests, notices and agreements shall be in writing or by telegram and, if to the Underwriters, shall be sufficient in all respects if delivered or sent to Dillon, Read & Co. Inc., 535 Madison Avenue, New York, New York 10022, Attention: Syndicate Department; and Lazard Freres & Co. LLC, One Rockefeller Plaza, New York, New York 10020, Attention: Syndicate Department and if to the Company, shall be sufficient in all respects if delivered or sent to the Company at the offices of the Company at 600 Grant Street, Pittsburgh, PA 15219, Attention: Lawrence J. McCabe, Esq., Senior Vice President - General Counsel; and if to the Selling Shareholders, shall be sufficient in all respects, if delivered or sent to Dewey Ballantine, 1301 Avenue of the Americas, New York, New York Attention: Paul J. Bschorr, Esq. 13. Construction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED ------------ IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS AGREEMENT. 14. Parties at Interest. The agreement herein set forth has been and ------------------- is made solely for the benefit of the Underwriters, the Company, the Selling Shareholders, the Underwriter indemnified parties, the Company indemnified parties and the Selling Shareholder indemnified parties, and their respective successors, assigns, executors and administrators. No other person, partnership, association or corporation (including a purchaser, as such purchaser, from any of the Underwriters) shall acquire or have any right under or by virtue of this Agreement. 15. Counterparts. This Agreement may be signed by the parties in ------------ counterparts which together shall constitute one and the same agreement among the parties. 32 If the foregoing correctly sets forth the understanding among the Company, the Selling Shareholders and the Underwriters, please so indicate in the space provided below for such purpose, whereupon this letter and your acceptance shall constitute a binding agreement among the Company, the Selling Shareholders and the Underwriters, severally. Very truly yours, H.J. HEINZ COMPANY By: ________________________ Name: Title: HOWARD HEINZ ENDOWMENT HEINZ FAMILY FOUNDATION By: ________________________ Name: Teresa Heinz Title: Chief Executive Officer VIRA I. HEINZ ENDOWMENT By: ________________________ Name: William H. Rea Title: Director H. JOHN HEINZ III REVOCABLE TRUST NO. 1 H. JOHN HEINZ DESCENDANTS' TRUST (NO. 1) H.J. HEINZ II FAMILY TRUST H.J. HEINZ II CHARITABLE AND FAMILY TRUST By: ________________________ Name: Teresa Heinz Title: Trustee 33 Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A DILLON, READ & CO. INC. LAZARD FRERES & CO. LLC MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED BY: DILLON, READ & CO. INC. By: ________________________ Name: Title: BY: LAZARD FRERES & CO. LLC By: ________________________ Name: Title: 34 SCHEDULE A Number of Underwriters Firm Shares ------------ ----------- Dillon, Read & Co. Inc. . . . . . . . . . . . . . . . . Lazard Freres & Co. LLC . . . . . . . . . . . . . . . . Merrill Lynch, Pierce, Fenner & Smith Incorporated. . . . . . . . . . . . . . . . ---------- Total 10,200,000 35 Schedule B
Number of Firm Number of Additional Name Shares to be Sold Shares to be Sold Howard Heinz Endowment 960,000 Vira I. Heinz 480,000 Endowment Heinz Family 50,000 Foundation H. John Heinz III 222,500 Revocable Trust No. 1 H. John Heinz III * Descendants' Trust (No. 1) H.J. Heinz II Family 100,000 Trust H.J. Heinz II 100,000 Charitable and Family Trust ========== ========= 10,200,000 1,912,500
36 ANNEX I Material Subsidiaries --------------------- Ore-Ida Foods, Inc. Star-Kist Foods, Inc. Weight Watchers International, Inc. Weight Watchers Food Company Portion Pac, Inc. 37 EX-1.B 3 INTL. UNDER. AGT EXHIBIT 1(b) H.J. HEINZ COMPANY COMMON STOCK ($0.25 Par Value) INTERNATIONAL UNDERWRITING AGREEMENT August __, 1995 INTERNATIONAL UNDERWRITING AGREEMENT August __, 1995 Lazard Brothers & Co. Limited Dillon, Read & Co. Inc. Merrill Lynch International Limited c/o Lazard Brothers & Co. Limited 21 Moorfields London EC2P 2HT England c/o Dillon, Read & Co. Inc. 535 Madison Avenue New York, New York 10022 as representatives (the "International Representatives") of the several underwriters listed on Schedule A hereto Dear Ladies and Gentlemen: The Howard Heinz Endowment, Vira I. Heinz Endowment, Heinz Family Foundation, H. John Heinz III Revocable Trust No. 1, H. John Heinz III Descendants Trust (No. 1), H.J. Heinz II Family Trust and H.J. Heinz II Charitable and Family Trust (collectively, the "Selling Shareholders") severally propose to sell to the several underwriters named in Schedule A (the "Underwriters") an aggregate of 2,550,000 shares (the "Firm Shares" or the "Shares") of Common Stock, par value $0.25 per share (the "Common Stock"), of H.J. Heinz Company, a Pennsylvania corporation (the "Company"). The Shares are described in the Prospectus which is referred to below. It is understood and agreed to by all parties that the Company and the Selling Shareholders are concurrently entering into an underwriting agreement (the "U.S. Underwriting Agreement") providing for the sale by the Selling Shareholders of an aggregate of 10,200,000 shares of Common Stock, and the granting of an over-allotment option with respect to up to an aggregate of 1,912,500 additional shares thereunder (together, the "U.S. Shares"), through certain underwriters in the United States and Canada (the "U.S. Underwriters"), for whom Dillon Read & Co. Inc., Lazard Freres & Co. LLC, and Merrill Lynch, Pierce, Fenner & Smith Incorporated are acting as representatives (the "U.S. Representatives"). Anything herein or therein to the contrary notwithstanding, the respective closings under this Agreement and the U.S. Underwriting Agreement are hereby expressly made conditional on one another. The Underwriters hereunder and the U.S. Underwriters are simultaneously entering into an Agreement Between U.S. and International Underwriters (the "Agreement Between U.S. and International Underwriters") which provides, among other things, for the transfer of shares of Common Stock between the two syndicates and for consultation by the International Representatives with the U.S. Representatives. Two forms of prospectus are to be used in connection with the offering and sale of shares of Common Stock contemplated by the foregoing, one relating to the Shares hereunder and the other relating to the U.S. Shares. The latter form of prospectus will be identical to the former except for the outside front and back cover pages as included in the registration statement and amendments thereto. References herein to any prospectus, whether in preliminary or final form, and whether amended or supplemented, shall include both the international and U.S. versions thereof. In addition, this Agreement incorporates by reference certain provisions from the U.S. Underwriting Agreement (including related definitions of terms, which are also used elsewhere herein) and, for purposes of applying the same, references (whether in these precise words or their equivalent) in the incorporated provisions to the "Underwriters" shall be to the Underwriters hereunder, to the "Shares" shall be to the Shares as defined above, to the "International Shares" shall be to the "U.S. Shares", to "this Agreement" "hereunder" or "hereof" (meaning therein the U.S. Underwriting Agreement) shall be to this Agreement (except where this Agreement is already referred to or as the context otherwise may require) and to the "U.S. Representatives" (except where the International Representatives are already referred to or as the context may otherwise require) shall be to the addressees of this Agreement and, in general, all such provisions and defined terms shall be applied mutatis ------- mutandis as if the incorporated provisions were set forth in full herein having -------- regard to their context in this Agreement as opposed to the U.S. Underwriting Agreement. The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the "Act"), with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3, including prospectuses relating to the Shares and the U.S. Shares, which incorporates by reference documents that the 2 Company has filed in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the "Exchange Act"). The Company has furnished to you, for use by the Underwriters and by dealers, copies of one or more preliminary prospectuses and all documents incorporated by reference therein (collectively, the "Preliminary Prospectus"). Except where the context otherwise requires, the registration statement as in effect at the time of execution of this Agreement or, if the registration statement is not yet effective, as amended when it becomes effective, including all documents filed as a part thereof or incorporated by reference therein, and including any information contained in a prospectus subsequently filed with the Commission pursuant to Rule 424(b) or Rule 434(c) under the Act and deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Act and any "abbreviated term sheet" described in Rule 434(c) under the Act that is deemed to be a part of such registration statement pursuant to Rule 434(d) under the Act (a "Term Sheet"), is herein called the "Registration Statement", and the prospectus, including all documents incorporated therein by reference, any Term Sheet which, in addition to the related preliminary prospectus, constitutes a part thereof pursuant to Rule 434(a) under the Act and any prospectus required pursuant to Rule 434(c)(2) of the Act (the "Integrated Prospectus"), each in the form filed by the Company with the Commission pursuant to Rule 424(b) under the Act or, if none of such filings is required, in the form of final prospectus included in the Registration Statement at the time it became effective, is herein called the "Prospectus". Any reference herein to the "date" of a Prospectus that includes a Term Sheet shall mean the date of such Term Sheet. The Selling Shareholders and the Underwriters agree as follows: 1. Sale and Purchase. On the basis of the representations and ----------------- warranties and the other terms and conditions herein set forth, each of the Selling Shareholders, severally and not jointly, agrees to sell to the respective Underwriters the number of Firm Shares set forth opposite the name of such Selling Shareholder on Schedule B and each of the underwriters, severally and not jointly, agrees to purchase from the Selling Shareholders the number of Firm Shares set forth opposite the name of such Underwriter on Schedule A, at a purchase price of $__ per Share. You may release the Firm Shares for public sale promptly after this Agreement becomes effective. You may from time to time increase or decrease the public offering 3 price after the initial offering to such extent as you may determine. 2. Payment and Delivery. Payment of the purchase price for the Firm -------------------- Shares shall be made to the Selling Shareholders by certified or official bank checks, in New York Clearing House funds, at the office of Dillon, Read & Co. Inc. in New York City, against delivery of the Firm Shares for the respective accounts of the Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York City time, on August __, 1995 (unless another time shall be agreed to by you and the Selling Shareholders or unless postponed in accordance with the provisions of Section 10). The time at which such payment and delivery are actually made is called the "time of purchase". The Firm Shares shall be delivered in such names and in such denominations as you shall specify on the second business day/1/ preceding the time of purchase. 3. Representations and Warranties of the Company. The Company makes --------------------------------------------- to each of the Underwriters the same respective representations and warranties made by the Company in Section 3 of the U.S. Underwriting Agreement, which Section is incorporated herein by reference. 4. Representations and Warranties of the Selling Shareholders. Each ---------------------------------------------------------- Selling Shareholder, severally and not jointly makes the same respective representations and warranties made by them in Section 4 of the U.S. Underwriting Agreement, which Section is incorporated herein by reference. 5. Certain Covenants of the Company. The Company makes to the -------------------------------- Underwriters the same respective covenants made by the Company in Section 5 of the U.S. Underwriting Agreement, which Section is incorporated herein by reference. 6. Certain Covenants of the Selling Shareholders. Each Selling --------------------------------------------- Shareholder severally and not jointly makes to each Underwriter and the Company the same respective covenants made by them in Section 6 of the U.S. Underwriting Agreement, which Section is incorporated herein by reference. 7. Reimbursement of Underwriters' Expenses. If the Shares are not --------------------------------------- delivered for any reason other than as a ------------------ /1/As used herein, "business day" shall mean a day on which the New York Stock Exchange is open for trading. 4 result of (i) a default by one or more of the Underwriters in its or their respective obligations hereunder or (ii) the occurrence of any event specified in the second paragraph of Section 9 hereof, the Selling Shareholders shall reimburse the Underwriters for all of their out-of-pocket expenses, including the fees and disbursements of their counsel reasonably incurred by them in connection with the offering of the Shares. 8. Conditions of Underwriters' Obligations. The several obligations --------------------------------------- of the Underwriters hereunder are subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders on the date hereof and at the time of purchase (and the several obligations of the Underwriters at the additional time of purchase are subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders on the date hereof and at the time of purchase), the performance by each of the Company and the Selling Shareholders of its and their obligations hereunder and to conditions identical to those set forth in Section 8 of the U.S. Underwriting Agreement, which Section is incorporated herein by reference. 9. Effective Date of Agreement; Termination. This Agreement shall ---------------------------------------- become effective (i) if neither Rule 430A nor Rule 434 under the Act is used, when you shall have received notification of the effectiveness of the Registration Statement, or (ii) if either Rule 430A or Rule 434 under the Act is used, when the parties hereto have executed and delivered this Agreement. The obligations of the several Underwriters hereunder shall be subject to termination in your absolute discretion if, at any time prior to the time of purchase, trading in securities generally on the New York Stock Exchange shall have been suspended or minimum prices shall have been established on the New York Stock Exchange, or if a general banking moratorium shall have been declared either by the United States or New York State authorities, or if the United States shall have declared war in accordance with its constitutional processes or there shall have occurred any material outbreak or escalation of hostilities or other national or international calamity or crisis of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in your judgment makes it impracticable to market the Shares or the U.S. Shares. If you elect to terminate this Agreement as provided in this Section 9, the Company, the Selling 5 Shareholders and each other Underwriter shall be notified promptly by written notice transmitted by facsimile and confirmed by written notice sent by registered mail, return receipt requested. If the sale to the Underwriters of the Shares, as contemplated by this Agreement, is not carried out by the Underwriters for any reason permitted under this Agreement or if such sale is not carried out because the Company or the Selling Shareholders, as the case may be, shall be unable to comply with any of the terms of this Agreement, neither the Company nor the Selling Shareholders shall be under any obligation or liability under this Agreement (except to the extent provided in Sections 6(b), 7 and 11), and the Underwriters shall be under no obligation or liability to the Company and the Selling Shareholders under this Agreement (except to the extent provided in Section 11). 10. Increase in Underwriters' Commitments. If any Underwriter shall ------------------------------------- default in its obligation to take up and pay for the Firm Shares to be purchased by it hereunder and if the number of Firm Shares which all Underwriters so defaulting shall have agreed but failed to take up and pay for does not exceed 10% of the total number of Firm Shares, the non-defaulting Underwriters shall take up and pay for (in addition to the aggregate principal amount of Firm Shares they are obligated to purchase pursuant to Section 1) the number of Firm Shares agreed to be purchased by all such defaulting Underwriters as hereinafter provided. Such Shares shall be taken up and paid for by such non-defaulting Underwriter or Underwriters in such amount or amounts as you may designate with the consent of each Underwriter so designated or, in the event no such designation is made, such Shares shall be taken up and paid for by all non- defaulting Underwriters pro rata in proportion to the aggregate number of Firm Shares set opposite the names of such non-defaulting Underwriters in Schedule A. Without relieving any defaulting Underwriter from its obligations hereunder, the Selling Shareholders agree with the non-defaulting Underwriters that they will not sell any Firm Shares hereunder unless all of the Firm Shares are purchased by the Underwriters (or by substituted underwriters selected by you with the approval of the Selling Shareholders or selected by the Selling Shareholders with your approval). If a new Underwriter or Underwriters are substituted by the Underwriters or by the Selling Shareholders for a defaulting Underwriter or Underwriters in 6 accordance with the foregoing provision, the Selling Shareholders or you shall have the right to postpone the time of purchase for a period not exceeding five business days in order that any necessary change in the Registration Statement and the Prospectus and other documents may be effected. The term Underwriter as used in this Agreement shall refer to and include any Underwriter substituted under this Section 10 with like effect as if such substituted Underwriter had originally been named in Schedule A. 11. Indemnity by the Company, the Selling Shareholders and the ---------------------------------------------------------- Underwriters. ------------ (a) The Company agrees to indemnify, defend and hold harmless each Underwriter, each person that controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and each Underwriter's agents, employees, officers and directors and the agents, employees, officers and directors of any such controlling person (collectively, the "Underwriter indemnified parties") from and against any and all losses, claims, damages, judgments, liabilities and expenses (including the reasonable fees and expenses of counsel and other expenses in connection with investigating, defending or settling any such action or claim) which, jointly or severally, any Underwriter indemnified party may incur as they are incurred (and regardless of whether such Underwriter indemnified party is a party to the litigation, if any) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or any Preliminary Prospectus, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, judgments, liabilities or expenses arise out of, or are based upon, any such untrue statement or omission or alleged untrue statement or omission based upon and in conformity with (i) information with respect to any Underwriter furnished in writing by or on behalf of any Underwriter through you to the Company expressly for use therein with reference to such Underwriter or (ii) information with respect to any Selling Shareholder furnished in writing by any Selling Shareholder to the Company expressly for use therein with reference to such Selling Shareholder and provided that the Company shall not be liable to any Underwriter 7 or any person that controls such Underwriter or such Underwriter's agents, employees, officers or directors (or the agents, employees, officers or directors of any such controlling person) with respect to any Preliminary Prospectus to the extent that any such loss, claim, damage, judgment, liability or expense results from the fact that such Underwriter sold shares to a person as to whom it shall be established that there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus (excluding documents incorporated by reference) or of the Prospectus as then amended or supplemented (excluding documents incorporated by reference) in any case where delivery is required by the Act if the Company has previously furnished copies thereof to such Underwriter and the loss, claims, damage, judgment, liability or expense of such Underwriter results from an untrue statement or omission of a material fact contained in, or omitted from, the Preliminary Prospectus which was corrected in the Prospectus (excluding documents incorporated by reference). This indemnity agreement will be in addition to any liability the Company otherwise may have. (b) Each Selling Shareholder, severally and not jointly agrees to indemnify, defend and hold harmless each Underwriter indemnified party from and against any and all losses, claims, damages, judgments, liabilities and expenses (including the fees and expenses of counsel and other expenses reasonably incurred in connection with investigating, defending or settling any such action or claim) which, jointly or severally, any Underwriter indemnified party may incur as they are incurred (and regardless of whether such Underwriter indemnified party is a party to the litigation, if any) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or any Preliminary Prospectus, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such losses, claims, damages, judgments, liabilities or expenses arise out of, or are based upon and in conformity with information with respect to such Selling Shareholder furnished in writing by such Selling Shareholder to the Company expressly for use therein with reference to such Selling Shareholder; provided, however, that such Selling -------- ------- Shareholder shall not be liable under this Section 11 in an amount 8 exceeding the total price at which the Shares and the U.S. Shares sold by such Selling Shareholder were offered to the public. This indemnity agreement will be in addition to any liability the Selling Shareholders otherwise may have. (c) If any action or proceeding (including any governmental or regulatory investigation or proceeding) shall be brought or asserted against any Underwriter indemnified party, with respect to which indemnity may be sought against the Company or the Selling Shareholders, as the case may be, pursuant to this Section 11, such Underwriter indemnified party shall promptly notify the Company or each Selling Shareholder, as the case may be, in writing, and the Company or the Selling Shareholders shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Underwriter indemnified party and payment of all fees and expenses; provided that the omission to notify the Company or the -------- Selling Shareholders shall not relieve them from any liability that they may have to any Underwriter indemnified party except to the extent that failure to give timely notice shall prejudice materially the defense of, or otherwise materially impair the indemnifying party's ability effectively to deal with, such action or proceeding. An Underwriter indemnified party shall have the right to employ separate counsel in any such action or proceeding and to assume the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter indemnified party unless (i) the employment of such counsel has been authorized in writing by the Company or the Selling Shareholders, as the case may be, (ii) the Company or the Selling Shareholders, as the case may be, have failed promptly to assume the defense and employ counsel satisfactory to the Underwriter indemnified party or (iii) the named parties to any such action or proceeding (including any impleaded parties) include both the Underwriter indemnified party and the Company or the Selling Shareholders, as the case may be, and such Underwriter indemnified party shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Company or the Selling Shareholders (in which case the Company or the Selling Shareholders shall not have the right to assume the defense of such action on behalf of such Underwriter indemnified party), in any of which events such fees and expenses shall be borne by the Company or the Selling Shareholders, as the case may be, and reimbursed as they are incurred. It is understood, however, that the Company or the Selling Shareholders shall not, in connection with any one such action or separate but substantially similar or related actions in the same 9 jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time for all such Underwriter indemnified parties, which firm shall be designated in writing by Lazard Brothers & Co. Limited and Dillon, Read & Co. Inc., and that all such fees and expenses shall be reimbursed as they are incurred. None of the Company or the Selling Shareholders shall be liable for any settlement of any such action effected without the written consent of the Company or the Selling Shareholders, as the case may be (which consent shall not be unreasonably withheld or delayed), but if settled with the written consent of the Company or the Selling Shareholders, as the case may be, or if there is a final judgment with respect thereto, the Company or the Selling Shareholders, as the case may be, agree to indemnify and hold harmless each Underwriter indemnified party from and against any loss or liability by reason of such settlement or judgment. (d) Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement, and any person that controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the "Company indemnified parties") and each Selling Shareholder and any person that controls such Selling Shareholder within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (collectively, the "Selling Shareholder indemnified parties")to the same extent as the foregoing indemnity from the Company and the Selling Shareholders to the Underwriter indemnified parties, but only with respect to information concerning such Underwriter furnished in writing by or on behalf of such Underwriter through you to the Company expressly for use with respect to such Underwriter in the Registration Statement, any Preliminary Prospectus or the Prospectus. In case any action shall be brought against any Company indemnified party or any Selling Shareholder indemnified party based on the Registration Statement, any Preliminary Prospectus or the Prospectus and in respect of which indemnity may be sought against any Underwriter pursuant to this Section 11(d), such Underwriter shall have the rights and duties given to the Company and the Selling Shareholders by Section 11(c) (except that if the Company or the Selling Shareholders shall have assumed the defense thereof such Underwriter shall not be required to do so, but may employ separate counsel 10 therein and participate in the defense thereof, provided that the fees and -------- expenses of such separate counsel shall be at the expense of such Underwriter), and the Company indemnified parties and the Selling Shareholder indemnified parties shall have the rights and duties given to the Underwriter indemnified parties by Section 11(c). (e) If the indemnification provided for in this Section 11 is unavailable to or insufficient to hold harmless any Underwriter indemnified party or any Company indemnified party or any Selling Shareholder indemnified party, then the party required to indemnify such indemnified party under this Section 11, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, judgments, liabilities and expenses (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Shareholders on the one hand and the Underwriters on the other hand from the offering of the Shares, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Selling Shareholders on the one hand and the Underwriters on the other hand in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Selling Shareholders on the one hand and the Underwriters on the other hand shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Selling Shareholders bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company and the Selling Shareholders on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, by the Selling Shareholders or by the Underwriters, and the parties' relative intent, knowledge, access to information and opportunity to 11 correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, judgments, liabilities and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any claim or action. The Company, the Selling Shareholders and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 11(e) were determined by pro rata allocation or by any other method of allocation (even if the Underwriters were treated as one entity for such purpose) that does not take account of the equitable considerations referred to in this Section 11(e). Notwithstanding the provisions of this Section 11(e), no Underwriter indemnified party shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by such Underwriter indemnified party and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter indemnified party otherwise has been required to pay by reason of such untrue statement or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations to contribute pursuant to this Section 11 are several in proportion to their respective underwriting commitments and are not joint. The statements under the caption "Underwriting" in the Prospectus, the last paragraph on the cover page of the Prospectus and the first paragraph on the third page of the Prospectus (to the extent such statements relate to an Underwriter) constitute the only information furnished to the Company in writing by such Underwriter expressly for use in the Registration statement, any Preliminary Prospectus or the Prospectus. (f) The indemnity and contribution agreements contained in this Section 11 and the representations, warranties and covenants of the Company and the Selling Shareholders contained in this Agreement shall remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter indemnified party or by or on behalf of 12 any Company indemnified party or any Selling Shareholder indemnified party, and shall survive any termination of this Agreement or the issuance and delivery of the Shares. Subject to the provisions of Section 11(c) and Section 11(d), the Company, each Selling Shareholder and each Underwriter agree promptly to notify the other of the commencement of any litigation or proceeding against it in connection with the issuance and sale of the Shares or in connection with the Registration Statement or the Prospectus. 12. Notices. Except as otherwise herein provided, all statements, ------- requests, notices and agreements shall be in writing or by telegram and, if to the Underwriters, shall be sufficient in all respects if delivered or sent to Lazard Brothers & Co. Limited, 21 Moorfields, London EC2P 2HT, England, Attention: Syndicate Department and Dillon, Read & Co. Inc., 535 Madison Avenue, New York, New York 10022, Attention: Syndicate Department; and if to the Company, shall be sufficient in all respects if delivered or sent to the Company at the offices of the Company at 600 Grant Street, Pittsburgh, PA 15219, Attention: Lawrence J. McCabe, Esq., Senior Vice President - General Counsel; and if to the Selling Shareholders, shall be sufficient in all respects, if delivered or sent to Dewey Ballantine, 1301 Avenue of the Americas, New York, New York Attention: Paul J. Bschorr, Esq. 13. Construction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED ------------ IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS AGREEMENT. 14. Parties at Interest. The agreement herein set forth has been and ------------------- is made solely for the benefit of the Underwriters, the Company, the Selling Shareholders, the Underwriter indemnified parties, the Company indemnified parties and the Selling Shareholder indemnified parties, and their respective successors, assigns, executors and administrators. No other person, partnership, association or corporation (including a purchaser, as such purchaser, from any of the Underwriters) shall acquire or have any right under or by virtue of this Agreement. 15. Counterparts. This Agreement may be signed by the parties in ------------ counterparts which together shall constitute one and the same agreement among the parties. 13 If the foregoing correctly sets forth the understanding among the Company, the Selling Shareholders and the Underwriters, please so indicate in the space provided below for such purpose, whereupon this letter and your acceptance shall constitute a binding agreement among the Company, the Selling Shareholders and the Underwriters, severally. Very truly yours, H.J. HEINZ COMPANY By: ________________________ Name: Title: HOWARD HEINZ ENDOWMENT HEINZ FAMILY FOUNDATION By: ________________________ Name: Teresa Heinz Title: Chief Executive Officer VIRA I. HEINZ ENDOWMENT By: ________________________ Name: William H. Rea Title: Director H. JOHN HEINZ III REVOCABLE TRUST NO. 1 H. JOHN HEINZ DESCENDANTS' TRUST (NO. 1) H.J. HEINZ II FAMILY TRUST H.J. HEINZ II CHARITABLE AND FAMILY TRUST By: ________________________ Name: Teresa Heinz Title: Trustee 14 Accepted and agreed to as of the date first above written, on behalf of themselves and the other several International Underwriters named in Schedule A LAZARD BROTHERS & CO. LIMITED DILLON, READ & CO. INC. MERRILL LYNCH INTERNATIONAL LIMITED BY: LAZARD BROTHERS & CO. LIMITED By: ________________________ Name: Title: BY: DILLON, READ & CO. INC. By: ________________________ Name: Title: 15 SCHEDULE A Number of Underwriters Firm Shares ------------ ----------- Lazard Brothers & Co. Limited . . . . . . . . . . . . . Dillon, Read & Co. Inc. . . . . . . . . . . . . . . . . Merrill Lynch International Limited . . . . . . . . . . ---------- Total 2,550,000 ---------- 16 SCHEDULE B Number of Firm Name Shares to be Sold Howard Heinz Endowment Vira I. Heinz Endowment Heinz Family Foundation H. John Heinz III Revocable Trust No. 1 H. John Heinz III Descendants' Trust (No. 1) H.J. Heinz Family Trust H.J. Heinz Charitable and Family Trust --------- 2,550,000 17 ANNEX I Material Subsidiaries --------------------- Ore-Ida Foods, Inc. Star-Kist Foods, Inc. Weight Watchers International, Inc. Weight Watchers Food Company Portion Pac, Inc. 18 EX-4.D 4 AMEND. TO REG. AGT EXHIBIT 4(d) August 2, 1995 H.J. Heinz Company 600 Grant Street Pittsburgh, PA 15219 Dear Sirs: This letter amendment ("Amendment") amends the Agreement for Registration of Common Stock (the "Agreement"), dated June 22, 1995, among H.J. Heinz Company, a Pennsylvania corporation (the "Company"), and Howard Heinz Endowment, Vira I. Heinz Endowment, Heinz Family Foundation, H.J. Heinz III Revocable Trust No. 1 and H. John Heinz III Descendants' Trust (No. 1) as follows: 1. The definitions of "Selling Shareholders" and "Selling Shareholder" set forth in the preamble to the Agreement are hereby amended by adding thereto the following additional parties who are signatories to this Amendment, namely: H.J. Heinz II Family Trust and H.J. Heinz II Charitable and Family Trust (together, the "Additional Selling Shareholders"; and each an "Additional Selling Shareholder"). 2. The Additional Selling Shareholders, together, and each Additional Selling Shareholder, individually, shall be entitled to the benefit of, and hereby undertake and agree to be bound by, each and every provision of the Agreement that inures to the benefit of, or is binding upon, as the case may be, the Selling Shareholders and each Selling Shareholder under the Agreement, to the same extent as if each Additional Selling Shareholder had been a party to the Agreement as of June 22, 1995, the date of its execution. 3. The Company and each of the Selling Shareholders (as defined in this Amendment) hereby agree that the second sentence of Section 3(a) of the Agreement is hereby amended to read as follows: "The Offering shall be made only through an underwriting syndicate co-managed by Dillon, Read & Co. Inc., Lazard Freres & Co. LLC and Merrill Lynch & Co., of which Dillon, Read & Co. Inc. and Lazard Freres & Co. LLC shall be and be deemed to be, co-lead underwriters with such specific and shared authority and responsibility (including joint control of the order books) as shall be agreed upon between such co-lead underwriters, consistent with the best interests of the Company and the Selling Shareholders, respectively; and it is further agreed (and it shall be a condition to the obligation of the parties to complete the Offering) that both co-lead 2 underwriters and also Merrill Lynch & Co., as a co-manager, must be signatories to the Underwriting Agreement to be entered into with the underwriters." If the foregoing correctly states the mutual understanding with respect to amendment of the Agreement, please countersign and return a copy of this Amendment to the undersigned. Very truly yours, HOWARD HEINZ ENDOWMENT By: /s/ Teresa Heinz ------------------------------------- Name: Teresa Heinz Title: Chairman and Chief Executive Officer VIRA I. HEINZ ENDOWMENT By: /s/ William H. Rae ------------------------------------- Name: William H. Rae Title: Director HEINZ FAMILY FOUNDATION By: /s/ Teresa Heinz ------------------------------------- Name: Teresa Heinz Title: Chairman and Chief Executive Officer H. JOHN HEINZ III REVOCABLE TRUST NO. 1 By: /s/ Teresa Heinz ------------------------------------- Name: Teresa Heinz Title: Trustee 3 H. JOHN HEINZ III DESCENDANTS' TRUST (NO. 1) By: /s/ Teresa Heinz ------------------------------------ Name: Teresa Heinz Title: Trustee H.J. HEINZ II FAMILY TRUST By: /s/ Teresa Heinz ------------------------------------ Name: Teresa Heinz Title: Trustee H.J. HEINZ II CHARITABLE AND FAMILY TRUST By: /s/ Teresa Heinz ------------------------------------ Name: Teresa Heinz Title: Trustee Confirmed and Agreed: H.J. HEINZ COMPANY By: /s/ David R. Williams ---------------------------------- Name: David R. Williams Title: Senior Vice President - Finance and Chief Financial Officer EX-5 5 OPN OF LAWRENCE J. MCCAB Exhibit 5 August 17, 1995 H.J. Heinz Company 600 Grant Street Pittsburgh, Pennsylvania 15219 Registration Statement on Form S-3 of H.J. Heinz Company (File No. 33-61519) Ladies and Gentlemen: I am Senior Vice President - General Counsel of H. J. Heinz Company, a Pennsylvania corporation (the "Company"). This opinion is being furnished to you in connection with the above-captioned Registration Statement on Form S-3 (the "Registration Statement") filed on August 2, 1995 with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the "Act"), and the rules and regulations promulgated thereunder (the "Rules"), as to the legality of the 14,662,500 shares (including 1,912,500 shares subject to an underwriters' over-allotment option) (the "Shares") of common stock, par value $.25 per share, of the Company to be registered thereunder. In connection with this opinion, I have examined the Registration Statement, the Company's Amended and Restated Articles of Incorporation, its By-laws, as amended, and records of certain of the Company's corporate proceedings. In addition, I have made such other examinations of law and fact as I considered necessary to form a basis for the opinion hereinafter expressed. Based on the foregoing, I am of the opinion that the Shares have been duly authorized and are validly issued, fully paid and nonassessable. 2 I am qualified to practice law in the Commonwealth of Pennsylvania, and I do not purport to be an expert in the laws of any jurisdiction other than the Commonwealth of Pennsylvania and the United States of America. I consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to my name under the caption ``Legal Matters'' in the prospectus included in the Registration Statement. In giving this consent, I do not hereby agree that I come within the category of persons whose consent is required by the Act or the Rules. Very truly yours, /s/ Lawrence J. McCabe Lawrence J. McCabe Senior Vice President- General Counsel