EX-10.1



 





Exhibit 10.1




RETIREMENT AND CONSULTING AGREEMENT




     This Retirement and Consulting Agreement
(this “Agreement”), dated January 31, 2008, is
entered into by and between H. J. HEINZ COMPANY, a Pennsylvania corporation (the “Company”), and
Jeffrey P. Berger (“Consultant”).



RECITALS




     WHEREAS, Consultant will retire from employment with the Company immediately following the end
of the Company Fiscal Year 2008 (the “Commencement Date”), unless Consultant’s employment with the
Company is terminated prior to the Commencement Date (an “Early Termination”) by either Consultant
or the Company under the terms set forth below;



     WHEREAS, the Company believes that Consultant’s expertise and knowledge will enhance the
Company’s business and the Company wishes to retain Consultant to perform consulting services and
fulfill certain related duties and obligations under the terms and conditions of this Agreement,
commencing on the Commencement Date; and



     WHEREAS, the Company and Consultant have entered into the Non-Competition and Non-Solicitation
Agreement of even date herewith.



     NOW, THEREFORE, in consideration of (a) the mutual covenants and agreements set forth in this
Agreement, and (b) other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:



     1. Employment Period. From the date of this Agreement through and until the
Commencement Date (the “Employment Period”), Consultant shall continue as an employee of the
Company as Executive Vice President performing his prescribed duties as set forth in Schedule 1,
attached hereto and made a part hereof, and subject to the Company’s policies and requirements
applicable to its employees and to Consultant as an executive officer thereof. An Early
Termination of the Employment Period shall occur at any time within the Employment Period when (i)
Consultant voluntarily terminates his employment with the Company upon written notice to the
Company; (ii) Consultant dies or becomes permanently disabled; (iii) Consultant’s employment is
terminated by the Company for “cause,” as defined in the Second Amended and Restated Fiscal Year
2003 Stock Incentive Plan (the “Plan”); or (iv) Consultant becomes entitled to receive or receives
compensation or benefits from the Company pursuant to the Severance Protection Agreement between
Consultant and Company. An Early Termination shall result in a termination of this Agreement and
upon such termination, any and all rights and obligations of the parties under this Agreement shall
terminate, including but not limited to any and all duties and compensation, including but not
limited to the issuance of RSUs, applicable to the consulting services which otherwise would have
applied following the Commencement Date but subject to the continuing survival of certain terms as
set forth in Section 10 below. Consultant hereby irrevocably designates May 1, 2008 as his
retirement date from employment



 









 







with the Company, subject to any applicable Early Termination. Concurrently with such
retirement, Consultant and Company shall exchange mutual releases of all claims, provided that this
Agreement, the Non-Competition and Non-Solicitation Agreement and Consultant’s retirement and all
other benefits provided to Consultant as a retiree under applicable Company plans shall continue in
full force and effect.



     2. Consulting Services.



          (a) Capacity. Effective on the Commencement Date, the Company retains Consultant with
respect to the business of the Company and its subsidiaries to be available on reasonable notice to
help resolve significant customer or other business issues arising in the areas of Consultant’s
expertise (the “Duties”). The Duties shall also include completion of the performance criteria set
forth in Schedule 2(c), attached hereto. Consultant hereby accepts such position upon the terms
and the conditions set forth herein, and shall perform such Duties.




          (b) Term and Operation. The consulting services will commence on the Commencement
Date and shall continue until, and shall end upon, the second anniversary of the Commencement Date
(the “Consulting Period”). Notwithstanding the foregoing, in addition to termination of this
Agreement by an Early Termination defined in Section 1 above, this Agreement may be terminated by
Consultant in writing upon ninety (90) days written notice to the Company. This Agreement will
terminate automatically on the death of Consultant. This Agreement shall terminate if Consultant
becomes entitled to receive or receives compensation or benefits from the Company pursuant to the
Severance Protection Agreement between Consultant and the Company. Additionally, the Company may
terminate this Agreement upon a material breach of this Agreement by Consultant which is not cured
within sixty (60) days following written notice of such breach from Company.




          (c) Compensation. In consideration of Consultant’s performance of the consulting
services during the Consulting Period, the Company will make a monthly payment to Consultant in an
amount equal to $41,666. Each such payment will be a separate payment and not one of a series of
payments for purposes of Section 409A of the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder (“Section 409A”). Additionally, on September 1, 2008
and provided that Consultant is in compliance with his obligations hereunder, the Company shall
grant 60,000 restricted stock units (“RSUs”) to Consultant under the terms and provisions specified
in Schedule 2(c), attached hereto and made a part hereof. Consultant agrees that this grant is
not, and shall not be asserted or construed as, a benefit or employee benefit plan within the
meaning of Section 9 herein.




          (d) Reimbursement of Expenses. The Company shall reimburse Consultant for all
reasonable expenses incurred by Consultant in the performance of Consultant’s duties under this
Agreement during the Consulting Period and in compliance with and subject to the expense
reimbursement policies and procedures of the Company. Included in such reimbursement shall be
Consultant’s travel and other expenses in connection with the customer visits referenced in
Schedule 2(c), attached hereto. Consultant shall not be obligated to make any advance to or for
the account of the Company, nor shall Consultant be obligated to incur any expense for the account
of the Company without assurance that the necessary funds for the discharge of such expense will be
provided. Notwithstanding the foregoing, all expenses over




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$5,000.00 to be incurred by Consultant during the Consulting Period in connection with this
Agreement shall require the prior approval of the Company’s Chief Administrative Officer. Each
provision of reimbursement of expenses or in-kind benefit pursuant to this Section 2(d) will be
considered a separate payment and not one of a series of payments for purposes of Section 409A.




          (e) Section 409A Delay. Notwithstanding any provisions of this Agreement to the
contrary, if Consultant is a “specified employee” within the meaning of Section 409A, and
determined in accordance with procedures adopted by the Company, at the time of Consultant’s
Separation from Service and if any portion of the payments or benefits to be received by Consultant
under this Section 2 upon Consultant’s Separation from Service would be considered deferred
compensation under Section 409A, then the following provisions shall apply to each such portion.





     (i) Each portion of such payments and benefits that would otherwise be payable
pursuant to this Section 2 during the six-month period immediately following
Consultant’s Separation from Service (the “Delayed Period”) shall instead be paid or
made available on the earlier of (i) the first business day of the seventh month
following the date Consultant incurs a Separation from Service or (ii) Consultant’s
death (the applicable date, the “Permissible Payment Date”).




     (ii) With respect to any amount of expenses eligible for reimbursement under
Section 2(d), such expenses shall be reimbursed by the Company within 60 calendar
days (or, if applicable, on the Permissible Payment Date) following the date on
which the Company receives the applicable invoice from Consultant (and approves such
invoice) but in no event later than December 31 of the year following the year in
which Consultant incurs the related expenses.




     (iii) In no event shall the reimbursements or in-kind benefits to be provided
by the Company in one taxable year affect the amount of reimbursements or in-kind
benefits to be provided in any other taxable year, nor shall Consultant’s right to
reimbursement or in-kind benefits be subject to liquidation or exchange for another
benefit.




     (iv) “Separation From Service” shall be deemed to have occurred on the date on
which the level of bona fide services reasonably anticipated to be performed by
Consultant is less than fifty percent of the average level of bona fide services
performed by Consultant during the immediately preceding thirty-six-month period.



          (f) Compliance with Code 409A. It is intended that any amounts payable under this
Agreement and the Company’s and Consultant’s exercise of authority or discretion hereunder will
comply with the provisions of Section 409A so as not to subject Consultant to the payment of the
additional tax, interest and any tax penalty which may be imposed under Section 409A. In
furtherance of this interest, to the extent that any provision hereof would result in Consultant
being subject to payment of the additional tax, interest and tax penalty under Section 409A, the
parties agree to amend this Agreement in order to bring this Agreement into



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compliance with Code Section 409A; and thereafter interpret its provisions in a manner that
complies with Section 409A Code. Notwithstanding the foregoing, no particular tax result for
Consultant with respect to any income recognized by Consultant in connection with the Agreement is
guaranteed, and Consultant will be responsible for any taxes, penalties and interest imposed on
Consultant under or as a result of Section 409A in connection with the Agreement.




     3. Non-Competition and Non-Solicitation Agreement. The Non-Competition and
Non-Solicitation Agreement between Consultant and the Company, a copy of which is attached hereto
as Exhibit A and made a part hereof, is hereby incorporated into this Retirement and Consulting
Agreement and any breach by Consultant of the Non-Competition and Non-Solicitation Agreement shall
be considered a material breach of this Agreement which shall not be considered curable but shall
result in immediate termination of this Agreement and the Consulting Period, notwithstanding
Section 2(b) above.



     4. Confidentiality.



          (a) Consultant will keep in strict confidence, and will not, directly or indirectly, at any
time, disclose, furnish, disseminate, make available or, except in the course of Consultant’s
performance of services for the Company, use any trade secrets or confidential business and
technical information of the Company or its customers or vendors, without limitation as to when or
how Consultant may have acquired such information. As used in this Agreement, “Confidential
Information” shall mean and include, without limitation, technical or business information not
readily available to the public or generally known in the trade, including but not limited to the
Company’s selling, manufacturing, marketing, pricing, distribution and business plans, methods,
strategies and techniques; training, service and business policies and procedures; inventions;
ideas; improvements; discoveries; developments; formulations; ingredients; recipes; specifications;
designs; standards; financial data; customer and supplier information; vendor and product
information; customer and prospective customer lists, other customer and prospective customer
information; equipment; mechanisms; processing and packaging techniques; trade secrets and other
confidential or business information, knowledge, data and know-how of the Company and its
Affiliates, whether or not they originated with Consultant or information which the Company or its
Affiliates received from third parties under an obligation of confidentiality. Consultant
specifically acknowledges that all such confidential information, whether reduced to writing,
maintained on any form of electronic media, or maintained in the mind or memory of Consultant and
whether compiled by the Company, and/or Consultant, derives independent economic value from not
being readily known to or ascertainable by proper means by others who can obtain economic value
from its disclosure or use, that reasonable efforts have been made by the Company to maintain the
secrecy of such information, that such information is the sole property of the Company and that any
retention, disclosure or use of such information by Consultant during the term of this Agreement
(except in the course of performing services for the Company) or after the termination of this
Agreement shall constitute a misappropriation of the Company’s trade secrets.




          (b) Consultant agrees that upon the expiration of this Agreement or termination of
Consultant’s performance of services, for any reason, Consultant shall return to the Company, in
good condition, all property of the Company, including without limitation, the originals and all
copies of any materials which contain, reflect, summarize, describe, analyze or



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refer or relate to any items of information listed in Section 4(a) of this Retirement and
Consulting Agreement. In the event that such items are not so returned, the Company will have the
right to charge Consultant for all reasonable damages, costs, attorneys’ fees and other expenses
incurred in searching for, taking, removing and/or recovering such property.




          (c) All elements of this Section 4 shall apply to and be in full force and effect during the
Employment Period, the Consulting Period, and the Non-Compete Period, as set forth in the
Non-Competition and Non-Solicitation Agreement.




     5. Discoveries and Inventions; Work Made for Hire.



          (a) Consultant agrees that upon conception and/or development of any idea, discovery,
invention, improvement, software, writing or other material or design that: (A) relates to the
business of the Company, or (B) relates to the Company’s actual or demonstrably anticipated
research or development, or (C) results from any services performed by Consultant for the Company,
Consultant will assign to the Company the entire right, title and interest in and to any such idea,
discovery, invention, improvement, software, writing or other material or design. Consultant has
no obligation to assign any idea, discovery, invention, improvement, software, writing or other
material or design that Consultant conceives and/or develops entirely on Consultant’s own time
without using the Company’s equipment, supplies, facilities, or trade secret information unless the
idea, discovery, invention, improvement, software, writing or other material or design either: (x)
relates to the business of the Company, or (y) relates to the Company’s actual or demonstrably
anticipated research or development, or (z) results from any work performed by Consultant for the
Company. Consultant agrees that any idea, discovery, invention, improvement, software, writing or
other material or design that relates to the business of the Company or relates to the Company’s
actual or demonstrably anticipated research or development which is conceived or suggested by
Consultant, either solely or jointly with others, within one (1) year following termination of this
Agreement or any successor agreements shall be presumed to have been so made, conceived or
suggested in the course of Consultant’s performance of services hereunder with the use of the
Company’s equipment, supplies, facilities, and/or trade secrets.




          (b) In order to determine the rights of Consultant and the Company in any idea, discovery,
invention, improvement, software, writing or other material, and to insure the protection of the
same, Consultant agrees that during the term of this Agreement, and for one (1) year thereafter,
Consultant will disclose immediately and fully to the Company any idea, discovery, invention,
improvement, software, writing or other material or design conceived, made or developed by
Consultant solely or jointly with others. The Company agrees to keep any such disclosures
confidential. Consultant also agrees to record descriptions of all work in the manner directed by
the Company and agrees that all such records and copies, samples and experimental materials will be
the exclusive property of the Company. Consultant agrees that at the request of and without charge
to the Company, but at the Company’s expense, Consultant will execute a written assignment of the
idea, discovery, invention, improvement, software, writing or other material or design to the
Company and will assign to the Company any application for letters patent or for trademark
registration made thereon, and to any common-law or statutory copyright therein; and that
Consultant will do whatever may be necessary or desirable to enable the Company to secure any
patent, trademark, copyright, or other property



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right therein in the United States and in any foreign country, and any division, renewal,
continuation, or continuation in part thereof, or for any reissue of any patent issued thereon. In
the event the Company is unable, after reasonable effort, and in any event after ten business days,
to secure Consultant’s signature on a written assignment to the Company of any application for
letters patent or to any common-law or statutory copyright or other property right therein, whether
because of Consultant’s physical or mental incapacity or for any other reason whatsoever,
Consultant irrevocably designates and appoints the Senior Vice President and General Counsel of the
Company or his or her designee as Consultant’s attorney-in-fact to act on Consultant’s behalf to
execute and file any such application and to do all other lawfully permitted acts to further the
prosecution and issuance of such letters patent, copyright or trademark.




          (c) Consultant acknowledges that, to the extent permitted by law, all work papers, reports,
documentation, drawings, photographs, negatives, tapes and masters therefore, prototypes and other
materials (hereinafter, “items”), including without limitation, any and all such items generated
and maintained on any form of electronic media, generated by Consultant during the term of this
Agreement shall be considered a “work made for hire” and that ownership of any and all copyrights
in any and all such items shall belong to the Company.




          (d) All elements of this Section 5 shall apply to and be in full force and effect during the
Employment Period, Consulting Period, and the Non-Compete Period, as set forth in the
Non-Competition and Non-Solicitation Agreement.




     6. Communication of Contents of Agreement. During the term of this Agreement and for
two (2) years thereafter, Consultant will communicate the contents of Sections 4 and 5 of this
Agreement and of the entire Non-Competition and Non-Solicitation Agreement to any person, firm,
association, partnership, corporation or other entity that Consultant intends to be employed by,
associated with, or represent. During the term of this Agreement and for two (2) years thereafter,
Consultant will provide notice to the Company of any person, firm, association, partnership,
corporation or other entity that Consultant becomes employed by, associated with, or represents.



     7. Non-Disparagement. During the Employment Period and during the Consulting Period
and for two (2) years following the expiration or termination of this Agreement, Consultant agrees
that he shall not make any disparaging statement about the Company or any current or former
officer, director or employee of the Company to any past, present or future customers, employees,
clients, contractors, or vendors of the Company or to any news or communications media or to any
other person, orally or in writing or by any other medium of communication (including but not
limited to Internet communications such as e-mails, message boards, “chat rooms” and web postings).
As used herein, the term “disparaging statement” means any communication, oral or written, which
is critical of or derogatory towards or which would cause or tend to cause humiliation or
embarrassment to or cause a recipient of such communication to question the business condition,
integrity, product, service, quality, confidence or good character of the Company or any current or
former officer, director or employee of the Company.



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     8. Relief. Consultant acknowledges and agrees that the remedy at law available to the
Company for breach of any of Consultant’s obligations under this Agreement would be inadequate.
Consultant therefore agrees that, in addition to any other rights or remedies that the Company may
have at law or in equity, temporary and permanent injunctive relief may be granted in any
proceeding which may be brought to enforce any provision contained in this Agreement, without the
necessity of proof of actual damage.



     9. Independent Contractor. During the Consulting Period, Consultant will at all times
be and remain an independent contractor. Consultant shall exercise Consultant’s own judgment as to
the manner and method of providing the consulting services to the Company, subject to applicable
laws and requirements reasonably imposed by the Company. Consultant acknowledges and agrees that,
during the term of this Agreement, Consultant will not be an employee of the Company or any of its
affiliates for purposes of federal, state, local or foreign income tax withholding, nor unless
otherwise specifically provided by law, for purposes of the Federal Insurance Contributions Act,
the Social Security Act, the Federal Unemployment Tax Act or any Worker’s Compensation law of any
state or country and for purposes of any benefits provided to employees of the Company or any of
its affiliates under any employee benefit plan currently in effect or which becomes effective
during the term of this Agreement. Consultant acknowledges and agrees that as an independent
contractor, Consultant will be required, during the term of this Agreement, to pay any applicable
taxes on the fees paid to Consultant. Consultant shall indemnify, hold harmless and defend the
Company for all tax and other liabilities (including, without limitation, reasonable fees and
expenses of attorneys and other professionals) arising out of or relating to Consultant’s failure
to report and pay all employment income taxes or other taxes due on taxable amounts paid to or on
behalf of Consultant by the Company during the Consulting Period.



     10. Survival. Subject to any limits on applicability contained therein, Sections 3,
4, 5, 6, 7, 8 and 10 through 16 hereof shall survive and continue in full force in accordance with
its terms notwithstanding any termination of this Agreement.



     11. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid or unenforceable in any respect under any applicable law,
such invalidity or unenforceability shall not affect any other provision, but this Agreement shall
be reformed, construed and enforced as if such invalid or unenforceable provision had never been
contained herein.



     12. Complete Agreement. This Agreement embodies the complete agreement and
understanding between the parties with respect to the subject matter hereof and effective as of its
date supersedes and preempts any prior understandings, agreements or representations by or between
the parties, written or oral, which may have related to the subject matter hereof in any way.



     13. Counterparts. This Agreement may be executed in separate counterparts, each of
which shall be deemed to be an original and both of which taken together shall constitute one and
the same agreement.



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     14. Successors and Assigns. This Agreement shall bind and inure to the benefit of and
be enforceable by Consultant, the Company and their respective successors and assigns, except that
neither party may assign any rights or delegate any obligations hereunder without the prior written
consent of the other party. Consultant hereby consents to the assignment by the Company of all of
its rights and obligations hereunder to any successor to the Company by merger or consolidation or
purchase of all or substantially all of the Company’s assets, provided such transferee or successor
assumes the liabilities of the Company hereunder.



     15. Choice of Law. This Agreement shall be governed by, and construed in accordance
with, the internal, substantive laws of the Commonwealth of Pennsylvania. Consultant agrees that
the state and federal courts located in Allegheny County, Pennsylvania, shall have jurisdiction in
any action, suit or proceeding by or against Consultant based on or arising out of this Agreement
and Consultant hereby: (a) submits to the personal jurisdiction of such courts; (b) consents to
service of process in connection with any action, suit or proceeding against Consultant; and (c)
waives any other requirement (whether imposed by statute, rule of court or otherwise) with respect
to personal jurisdiction, venue or service of process.



     16. Amendment and Waiver. The provisions of this Agreement may be amended or waived
only with the prior written consent of the Company and Consultant, and no course of conduct or
failure or delay in enforcing the provisions of this Agreement shall affect the validity, binding
effect or enforceability of this Agreement.



     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first
above written.



	 	 	 	 	 
	 	 	H. J. HEINZ COMPANY
	 
	 	 	 	 
	 

	 	By:	 	/s/ D. Edward I. Smyth 
	 

	 	 	 	 
	 

	 	 	 	Name: D. Edward I. Smyth

Title: Senior Vice President and Chief Administrative Officer
	 
	 	 	 	 
	 

	 	 	 	/s/ Jeffrey P. Berger
	 

	 	 	 	 
	 

	 	 	 	Jeffrey P. Berger






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SCHEDULE 1




EVP & Chairman, Global Foodservice Position Description




 









 










 









 










 









 





SCHEDULE 2(c)



The award of 60,000 restricted stock units (“RSUs”) on or around September 2008 to
be valued at the closing price of Heinz Common Stock on the New York Stock Exchange
on the date of the grant, of which fifty percent (50%) would vest in 25% annual
installments over four years commencing on the first anniversary of the date of the
grant (“Term Vested RSUs”), and the remaining 50% would vest on the fourth
anniversary of the grant provided Mr. Berger has achieved the following performance
criteria (“Performance Vested RSUs”) during the Consulting Period:





	 	§	 	Four visits to or personal meetings with major foodservice customers
of the Company both in the U.S. and overseas during each twelve (12)
month period of the Consulting Period;
	 
	 	§	 	Each visit to a major foodservice customer shall be followed within
a reasonable period with a personal report to the Company, by
Consultant in which Consultant outlines recommendations for future
action with respect to such customer for increasing sales and
profitability and furthering the customer relationship.




With respect to both the Term Vested RSUs and Performance Vested RSUs, all unvested
RSUs, and any right to the grant or issuance of RSUs under this Agreement, shall be
forfeited, cancelled and terminated if Consultant commits a material breach of the
Non-Competition and Non-Solicitation Agreement, including but not limited to a
material breach of the non-competition, non-disparagement, non-solicitation or
confidentiality provisions thereof.



In case of Consultant’s death or permanent disability prior to the grant of RSUs, no
RSUs shall be granted or issued.



In the case of Consultant’s death or permanent disability following the grant of
RSUs, all RSUs shall continue and remain valid and enforceable and the Performance
Vested RSUs shall vest in accordance with the applicable vesting schedule despite
Consultant’s inability to perform the performance criteria in this Schedule 2(c) and
may be subject to acceleration of vesting as permitted by the Plan and the Company.



If Consultant becomes entitled to receive or receives compensation or benefits from
the Company pursuant to the Severance Protection Agreement between Consultant and
Company, all RSUs granted, and any right to the grant or issuance of RSUs, under
this Agreement shall be forfeited, cancelled and terminated.



Termination of this Agreement by Consultant or upon the material breach of this
Agreement by Consultant shall be referred to as an “Agreement Termination”.




 









 






	 	§	 	Upon Agreement Termination prior to the grant of RSUs, no RSUs shall
be granted and Consultant retains no rights to such RSUs.
	 
	 	§	 	Upon Agreement Termination following the grant of RSUs, all unvested
Performance Vested RSUs shall be forfeited, cancelled and terminated
and all other Term Vested RSUs, either vested or unvested, shall
continue and be in force; provided, however, if Agreement Termination
occurs due to a material breach of the Non-Competition and
Non-Solicitation Agreement, including the non-competition,
non-disparagement, non-solicitation or confidentiality provisions, then
all unvested Performance Vested RSUs, and unvested Term Vested RSUs are
forfeited, cancelled and terminated.




All RSUs to be granted hereunder shall be awarded pursuant to the Plan. Consultant
will be paid cash dividend equivalents for the RSUs under the Plan. Payment of cash
dividend equivalents, distribution of vested RSUs, and tax withholding on
distributed amounts will be in accordance with the form of Fiscal Year 2008
Restricted Stock Unit Award Agreement as filed by the Company with the United States
Securities and Exchange Commission, and shall be subject to such other terms and
provisions as are set forth in such Form Agreement and as are consistent with
Consultant’s status as a consultant.




 









 








NON-COMPETITION AND NON-SOLICITATION AGREEMENT




     THIS NON-COMPETITION AND NON-SOLICITATION AGREEMENT (the “Agreement”), is made and entered
into this 31st day of January, 2008, by and between Jeffrey P. Berger, an individual (“Mr.
Berger”) and H. J. Heinz Company and its subsidiaries and affiliates (collectively, the “Company”).



WITNESSETH:




     WHEREAS, Mr. Berger is currently employed by the Company on an at-will basis as the Executive
Vice President of H. J. Heinz Company;



     WHEREAS, the Company shall continue to employ Mr. Berger through Company Fiscal Year 2008 and
to offer him a consulting agreement of a maximum duration of twenty-four (24) months, commencing
immediately following the end of Company Fiscal Year 2008, each at mutually agreed levels of
compensation, pursuant to the terms of a Retirement and Consulting Agreement, a copy of which is
attached hereto and made a part hereof, that the parties hereto have entered into;



     WHEREAS, Mr. Berger desires to accept the aforementioned proposal and to be bound by the
non-competition, non-solicitation, and other obligations under this Agreement; and



     NOW, THEREFORE, in consideration of the premises and the mutual promises that this Agreement
contains and other good and valuable consideration, the receipt and adequacy of which Mr. Berger
acknowledges, the parties, intending to be bound legally, agree as follows:



     1. Consideration. Mr. Berger acknowledges and agrees that he has obtained from the
Company the Retirement and Consulting Agreement. Mr. Berger acknowledges and agrees that the
benefits set forth in the Retirement and Consulting Agreement are full and adequate consideration
for this Agreement.



     2. Separation Date. For the purposes of this Agreement, the date on which Mr. Berger
ceases to perform services for the Company pursuant to the Retirement and Consulting Agreement
shall be deemed his “Separation Date”. If there is an early termination of Mr. Berger’s employment
under the Retirement and Consulting Agreement, the date of such early termination shall become the
Separation Date. Otherwise, the Separation Date is the expiration or termination date of the
Consulting Period pursuant to the Retirement and Consulting Agreement. Mr. Berger acknowledges and
agrees that he shall have received full consideration for his non-competition and other obligations
hereunder whether or not he is employed by the Company through the end of Company Fiscal Year 2008
and is retained as a consultant through the full term of the Retirement and Consulting Agreement.
If Mr. Berger’s employment is terminated prior to the Commencement Date under the Retirement and
Consulting Agreement, or if Mr. Berger’s consulting services are terminated prior to May 1, 2010
under the terms of the Retirement and Consulting Agreement,



 









 




Mr. Berger’s obligations under this Agreement shall remain in full force and effect, for the entire
Non-Compete Period, as defined below.




     3. Acknowledgments. Mr. Berger acknowledges and agrees that:



          (i) The Company and its Affiliates are engaged in the businesses of manufacturing and selling
certain food products in retail, foodservice, and other distribution channels in the United States,
Canada, and throughout the world;




          (ii) It is reasonable and necessary for the protection of the business and goodwill of the
Company and its Affiliates for Mr. Berger to enter into an agreement respecting non-competition and
non-solicitation as set forth in this Agreement;




          (iii) It is reasonable for the parties to fix the duration of the non-competition provisions
to the period set forth herein, including for the reason that Mr. Berger, pursuant to the
Retirement and Consulting Agreement, has been offered the opportunity to perform consulting
services for the Company for substantial compensation for a period equivalent to the full term of
the restrictions herein;




          (iv) Mr. Berger has business experience and abilities such that he would be able to obtain
employment in a business different in nature from the Restricted Business (as defined below);




          (v) Mr. Berger agrees that the Company and its Affiliates would suffer irreparable injury if
Mr. Berger breaches the non-competition provisions set forth in this Agreement;




          (vi) As used in this Agreement, the term “Affiliates” shall mean any company that controls, is
controlled by, or is under common control with H. J. Heinz Company, including, but not limited to,
any direct or indirect subsidiary or division of H. J. Heinz Company; and




          (vii) As used herein, the term “Confidential Information” shall mean technical or business
information not readily available to the public or generally known in the trade, including but not
limited to inventions; ideas; improvements; discoveries; devices; developments; formulations;
ingredients; recipes; specifications; designs; standards; financial data; sales, marketing, pricing
and distribution plans, techniques and strategies; customer and supplier information; equipment;
mechanisms; manufacturing plans; processing and packaging techniques; trade secrets and other
confidential information, knowledge, data and know-how of the Company and its Affiliates, whether
or not they originated with Mr. Berger, or information which the Company or its Affiliates received
from third parties under an obligation of confidentiality.




     4. Restrictions on Competition; Non-Solicitation. Based on the foregoing, and in
consideration of the benefits set forth in the Retirement and Consulting Agreement as set forth in
Section 1 above, Mr. Berger agrees as follows:



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          (i) From the date of this Agreement through the Separation Date and for a period of
twenty-four (24) months after the Separation Date (which period beginning on the date of this
Agreement shall be referred to as the “Non-Compete Period”), Mr. Berger shall not, without the
prior written consent of the Company, engage directly or indirectly in the business of developing,
manufacturing, processing, producing, promoting, marketing, distributing, or selling anywhere in
the world (i) products, processes or services for Nestle S.A., Unilever N.V., Campbell Soup
Company, or ConAgra Foods, Inc. or any of their subsidiaries or affiliates anywhere in the world;
(ii) any food product, process, or service that competes with a product, process, or service of the
Company or its Affiliates upon or with which Mr. Berger worked during his last two (2) years of his
employment with the Company, including without limitation any processed food product packaged in
portion control containers (including but not limited to cups, packets, and pouches); or (iii) any
product (including food and non-food products), process or service whatsoever used in or marketed
to the Foodservice Industry, as defined below (collectively, the “Restricted Business”). The
Foodservice Industry shall mean that portion of any business that involves the operation of
commercial and non-commercial food service establishments in any of the following: food service
restaurants; fast-service restaurants; hospitals; business and industry; military feedings; vending
feedings; athletic and entertainment facilities; airlines; schools; colleges and universities;
warehouse; convenience store feedings; delicatessens; supermarket feedings; deli departments; and
club stores.




          (ii) Mr. Berger shall be deemed to be engaged in the Restricted Business directly if he is an
officer, director, trustee, agent, or partner of, a consultant or advisor to or for, a shareholder
in, or a holder of any financial interest in any Restricted Business. The foregoing shall not be
construed to prohibit the mere ownership by Mr. Berger of investments representing less than a 5%
interest in the securities of any company if such securities are included in the National Market
Securities list of the National Association of Securities Dealers, Inc. Automated Quotation System
or listed on any national securities exchange.




          (iii) The geographic scope of the covenant of Mr. Berger not to compete against the Company
and its Affiliates shall be anywhere in the world for the Non-Compete Period.




          (iv) During the term of the Non-Compete Period, Mr. Berger agrees that he shall not, nor will
he permit any company or other business entity controlled by him to, directly or indirectly,
solicit or induce, or attempt to solicit or induce, any employee of the Company or its Affiliates
to leave the employ of the Company or its Affiliates for any reason whatsoever.




          (v) Mr. Berger covenants and agrees that during the Non-Compete Period, Mr. Berger shall not,
directly or indirectly, acting alone or in conjunction with others induce any customer or
prospective customer of the Company to patronize any business which is competitive with the
Company; canvass, solicit, or accept from any customer or prospective customer of the Company any
business which is competitive with the Company; request or advise any individual or entity which is
a customer of the Company to withdraw, curtail, or cancel any such customer’s business with respect
to the Company; or interfere with the Company’s business relationship with any customers or
suppliers or prospective customers or prospective suppliers of the Company.




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          (vi) Mr. Berger further promises and agrees that he shall not, during the term of the
Non-Compete Period or at any time thereafter, use for himself or disclose Confidential Information
to any person or entity without the prior written consent of the Company.




          (vii) Mr. Berger covenants and agrees that during the Non-Compete Period, or at any time
thereafter, Mr. Berger shall not make any disparaging statement about the Company or any current or
former officer, director or employee of the Company to any past, present or future customers,
employees, clients, contractors, or vendors of the Company or to any news or communications media
or to any other person, orally or in writing or by any other medium of communication (including but
not limited to Internet communications such as e-mails, message boards, “chat rooms” and web
postings). As used herein, the term “disparaging statement” means any communication, oral or
written, which is critical of or derogatory towards or which would cause or tend to cause
humiliation or embarrassment to or cause a recipient of such communication to question the business
condition, integrity, product, service, quality, confidence or good character of the Company or any
current or former officer, director or employee of the Company.




     5. Extension of Non-Compete Period. If it shall be judicially determined that Mr.
Berger has violated his non-compete or non-solicitation obligations under this Agreement, then the
period applicable to each obligation that Mr. Berger shall have been determined to have violated
shall automatically be extended by a period of time equal in length to the period during which such
violation(s) occurred.



     6. Authorization to Modify Restrictions. It is the intention of the Company and Mr.
Berger that the provisions of this Agreement shall be enforceable to the fullest extent permissible
under applicable law, but that the unenforceability (or modification to conform to such law) of any
provision of this Agreement shall not render unenforceable, or impair, the remainder of this
Agreement. If any provision, or any part of this Agreement, is held to be unenforceable because of
the duration, area, and/or scope of such provision, the parties agree that the court making such
determination shall have the power to reduce the duration, area, and/or scope of such provision,
and/or to delete specific words or phrases, and in its reduced form such provisions shall then be
enforceable and shall be enforced.



     7. Severability. Subject to paragraph 6 above, the provisions of this Agreement are
severable. If any part of this Agreement is found to be unenforceable, the other sections shall
remain fully valid and enforceable.



     8. Injunctive Relief/Remedies. Mr. Berger agrees that any remedy at law will be
inadequate for any breach or threatened breach by Mr. Berger of any of the covenants contained in
Section 4 of this Agreement and that any breach or threatened breach of such covenants would cause
such immediate, irreparable, and permanent damages as would be impossible to ascertain. Therefore,
Mr. Berger agrees and consents that, in the event of any breach or threatened breach of the
covenants contained in Section 4 of this Agreement, in addition to any and all other remedies
available to the Company for such breach or threatened breach, including a recovery of damages, the
Company shall be entitled to obtain preliminary or permanent injunctive relief without the
necessity of proving actual damages by reason of such breach or threatened breach and, to the
extent



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permitted by applicable law, a temporary restraining order (or similar procedural device) may be
granted immediately upon the commencement of such action.



     9. Consent to Jurisdiction/Venue/Service of Process. This Agreement shall be governed
by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Mr. Berger
hereby irrevocably waives any objection which he now or hereafter may have to the laying of venue
of any action or proceeding arising out of or relating to this Agreement brought in the United
States District Court for the Western District of Pennsylvania or the Court of Common Pleas of
Allegheny County, Pennsylvania and any objection on the ground that any such action or proceeding
in either of such Courts has been brought in an inconvenient forum. In this regard, Mr. Berger
hereby irrevocably submits to the personal jurisdiction of the United States District Court for the
Western District of Pennsylvania or the Court of Common Pleas of Allegheny County, Pennsylvania in
any action or proceeding arising out of or relating to this Agreement. Mr. Berger further hereby
irrevocably consents to the service of any summons and complaint and any other process which may be
served in any action or proceeding arising out of or related to this Agreement brought in the
United States District Court for the Western District of Pennsylvania or the Court of Common Pleas
of Allegheny County by the mailing by certified or registered mail of copies of such process to Mr.
Berger at his last known address on file at the Company. Mr. Berger and the Company acknowledge
that the forums designated herein present the most convenient forums for both parties, and Mr.
Berger waives any objections to inconvenience of forum, venue, and personal jurisdiction of the
Court.



     10. Waiver. The failure of the Company to enforce any provision of this Agreement
shall not in any way be construed as a waiver of any such provision or provisions; nor shall the
Company be prevented from thereafter enforcing each and every provision of this Agreement.
Instead, this Agreement shall remain in full force and effect as if such forbearance or waiver had
not occurred. Further, in an action by the Company to enforce this Agreement, any claims asserted
by Mr. Berger against the Company shall not constitute a defense to the Company’s action.



     11. Interpretation. This Agreement shall be construed as a whole according to the
fair meaning of its language and, regardless of who is responsible for its original drafting, shall
not be construed for or against either party. The captions of the various sections of this
Agreement are included for convenience of reference only and shall in no way affect the
construction or interpretation of this Agreement.



     12. Governing Law. This Agreement shall be governed by and construed according to the
laws of the Commonwealth of Pennsylvania, without regard to its choice of law provisions.



     13. Non-Reliance. Mr. Berger represents and acknowledges that in executing this
Agreement he does not rely and has not relied upon any representation or statement by the Company
or any of its Affiliates or their attorneys not set forth in this Agreement with regard to the
subject matter, basis, or effect of this Agreement or otherwise.



     14. Assignment. Mr. Berger expressly acknowledges and agrees that this Agreement, and
the obligations and covenants of Mr. Berger hereunder, may be assigned by the Company only,



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in whole or in part, to any person or entity that acquires the Company or all or any portion of the
business in which Mr. Berger was employed by the Company.



     15. Entire Agreement. This Agreement executed by Mr. Berger and the Company on the
dates set forth below set forth the entire agreement between the parties on the subject matter of
this Agreement and fully supersedes all prior agreements or understandings between the parties
pertaining to the subject matter of this Agreement except as set forth in the Retirement and
Consulting Agreement. This Agreement may not be amended or modified except by a written instrument
signed by Mr. Berger and a duly authorized representative of the Company.



     16. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall constitute one and the
same instrument.








Mr. berger acknowledges: (i) that he has read and understands the provisions of this
Agreement; (ii) that he enters this Agreement voluntarily and for full and sufficient
consideration; (iii) that he has had the opportunity to consult with counsel of his choosing; (iv)
that the provisions of this Agreement are reasonable; and (v) that his experience and capabilities
are such that the provisions of this Agreement will not prevent him from earning his livelihood.








     IN WITNESS WHEREOF, each party has signed or caused its representative to sign this Agreement
on the dates indicated below.



	 	 	 	 	 	 	 	 	 	 	 
	Date:
	 	January 31, 2008 	 	 	 	/s/ Jeffrey P. Berger	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Jeffrey P. Berger	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	H. J. HEINZ COMPANY	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Date:

	 	January 31, 2008 	 	 	 	By:	 	/s/ D. Edward I. Smyth 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	D. Edward I. Smyth 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	Senior Vice President and 
Chief
Administrative Officer 	 	 
	 

	 	 	 	 	 	 	 	 	 	 






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