EX-10(a)(i)






Exhibit 10(a)(i)




SEVERANCE PROTECTION AGREEMENT




     THIS AGREEMENT made as of the ___day of ___200___by and between the “Company” (as hereinafter
defined) and                      (the “Executive”).



     WHEREAS, the Board of Directors of the Company (the “Board”) recognizes that the possibility
of a Change in Control (as hereinafter defined) exists and that the threat or the occurrence of a
Change in Control can result in significant distractions of its key management personnel because of
the uncertainties inherent in such a situation;



     WHEREAS, the Board has determined that it is essential and in the best interest of the Company
and its stockholders to retain the services of the Executive in the event of a threat or occurrence
of a Change in Control and to ensure the Executive’s continued dedication and efforts in such event
without undue concern for the Executive’s personal financial and employment security; and



     WHEREAS, in order to induce the Executive to remain in the employ of the Company, particularly
in the event of a threat of the occurrence of a Change in Control, the Company desires to enter
into this Agreement with the Executive to provide the Executive with certain benefits in the event
the Executive’s employment is terminated as a result of, or in connection with, a Change in
Control.



     NOW, THEREFORE, in consideration of the respective agreements of the parties contained herein,
it is agreed as follows:



     1. Term of Agreement. Subject to the remaining provisions of this Section 1, this
Agreement shall commence as of the date of this Agreement and shall continue in effect until
                    ,
200_; provided, however, that commencing on each anniversary of                     
 thereafter, the term of this Agreement shall automatically be extended for one (1)
year unless either the Company or the Executive shall have given written notice to the other at
least ninety (90) days prior thereto that the term of this Agreement shall not be so extended; and
provided, further, however, that notwithstanding any such notice by the Company not to extend, if a
Change in Control occurs during the term of this Agreement, the term of this Agreement shall not
expire before the expiration of 24 months after the occurrence of a Change in Control.
Notwithstanding the foregoing, this Agreement shall expire and be of no further



 









 







force and effect in
the event of any termination of employment that occurs prior to a Change in Control; provided,
that, in the event that a Change in Control actually occurs following such termination of
employment, nothing in this Section 1 shall prohibit the Executive from asserting that his or her
termination of employment was for Good Reason, consistent with the terms of this Agreement.



     2. Definitions.



          2.1. Accrued Compensation. For purposes of this Agreement, “Accrued Compensation”
shall mean an amount which shall include all amounts earned or accrued through the “Termination
Date” (as hereinafter defined) but not paid as of the Termination Date including (i) base salary,
(ii) reimbursement for reasonable and necessary expenses incurred by the Executive on behalf of the
Company during the period ending on the Termination Date, (iii) vacation pay, and (iv) bonuses and
incentive compensation (other than the “Pro Rata Bonus” (as hereinafter defined)).




          2.2. Base Amount. For purposes of this Agreement, “Base Amount” shall mean the greater
of the Executive’s annual base salary (a) at the rate in effect on the Termination Date or (b) at
the highest rate in effect at any time during the ninety (90) day period before the Change in
Control, and shall include all amounts of the Executive’s base salary that are deferred under the
qualified and non-qualified employee benefit plans of the Company or any other agreement or
arrangement.




          2.3. Bonus Amount. For purposes of this Agreement, “Bonus Amount” shall mean the
average of the annual [cash] bonuses [(including both cash bonus and any cash bonus foregone by the
Executive in exchange for restricted stock units of the Company)] paid or payable during the three
full fiscal years ended before the Termination Date or, if greater, the three full fiscal years
ended before the Change in Control (or, in each case, such lesser period for which [cash] annual
bonuses [(including both cash bonus and any cash bonus foregone by the Executive in exchange for
restricted stock units of the Company)] were paid or payable to the Executive); provided, that, in
the event the Executive has not been employed by the Company for a full fiscal year, the “Bonus
Amount” shall equal the Executive’s target annual [cash] bonus during the year of termination of
employment.







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          2.4. Cause. For purposes of this Agreement, a termination of employment is for “Cause”
if (a) the Executive has been convicted of, or has entered a plea of nolo contendere to, (i) a
crime constituting a felony under the laws of the United States or any state thereof or (ii) a
misdemeanor involving moral turpitude, or (b) the termination is evidenced by a resolution adopted
in good faith by two-thirds of the Board that the Executive (i) intentionally and continually
failed substantially to perform the Executive’s reasonably assigned duties with the Company (other
than a failure resulting from the Executive’s incapacity due to physical or mental illness or from
the Executive’s assignment of duties that would constitute “Good Reason” as hereinafter defined)
which failure continued for a period of at least thirty (30) days after a written notice of demand
for substantial performance has been delivered to the Executive by the Company specifying the
manner in which the Executive has failed substantially to perform, or (ii) intentionally engaged in
conduct which is demonstrably and materially injurious to the Company; provided, however, that no
termination of the Executive’s employment shall be for Cause as set forth in clause (ii) above
until (x) there shall have been delivered to the Executive a copy of a written notice setting forth
that the Executive was guilty of the conduct set forth in clause (ii) and specifying the
particulars thereof in detail, and (y) the Executive shall have been provided an opportunity to be
heard in person by the Board (with the assistance of the Executive’s counsel if the Executive so
desires). No act, nor failure to act, on the Executive’s part, shall be considered “intentional”
unless the Executive has acted, or failed to act, with a lack of good faith and with a lack of
reasonable belief that the Executive’s action or failure to act was in the best interest of the
Company.




          2.5. Change in Control. For purposes of this Agreement:




               (a) A “Change in Control” shall mean any of the following events:




      (1) An acquisition (other than directly from the Company) of any voting
securities of the Company (the “Voting Securities”) by any “Person” (as the term
person is used for purposes of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the “1934 Act”)) immediately after which such Person has
“Beneficial Ownership” (within the meaning of Rule 13d-3 promulgated under the 1934
Act) of twenty percent



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(20%) or more of the combined voting power of the Company’s then outstanding Voting
Securities; provided, however, that in determining whether a Change in Control has
occurred, Voting Securities which are acquired in a “Non-Control Acquisition” (as
hereinafter defined) shall not constitute an acquisition which would cause a Change
in Control. A “Non-Control Acquisition” shall mean an acquisition by (i) an
employee benefit plan (or a trust forming a part thereof) maintained by (x) the
Company or (y) any corporation or other Person of which a majority of its voting
power or its equity securities or equity interest is owned directly or indirectly
by the Company (a “Subsidiary”), (ii) the Company or any Subsidiary, or (iii) any
Person in connection with a “Non-Control Transaction” (as hereinafter defined).




     (2) The individuals who, as of the date of this Agreement, are members of the
Board (the “Incumbent Board”), cease for any reason to constitute at least
two-thirds of the Board; provided, however, that if the election, or nomination for
election by the Company’s stockholders, of any new director was approved by a vote
of at least two-thirds of the Incumbent Board, such new director shall, for
purposes of this Agreement, be considered as a member of the Incumbent Board;
provided, further, however, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a result of either
an actual or threatened “Election Consent” (as described in Rule 14a-11 promulgated
under the 1934 Act) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board (a “Proxy Contest”)
including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest;




     (3) A merger, consolidation or reorganization involving the Company or a
subsidiary of the Company, unless




     (i) the Voting Securities of the Company, immediately before such
merger, consolidation or reorganization, continue immediately following
such merger, consolidation or reorganization to represent, either by
remaining outstanding or by being converted into voting securities of the
surviving corporation resulting from such merger, consolidation or
reorganization or its parent (the
“Surviving Corporation”), at least sixty percent (60%) of the combined



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voting power of the outstanding voting securities of the Surviving
Corporation;




     (ii) the individuals who were members of the Incumbent Board
immediately before the execution of the agreement providing for such
merger, consolidation or reorganization constitute more than one-half of
the members of the board of directors of the Surviving Corporation; and




     (iii) no person (other than the Company, any Subsidiary, any employee
benefit plan (or any trust forming a part thereof) maintained by the
Company, the Surviving Corporation or any Subsidiary, or any Person who,
immediately before such merger, consolidation or reorganization had
Beneficial Ownership of fifteen percent (15%) or more of the then
outstanding Voting Securities) has Beneficial Ownership of fifteen percent
(15%) or more of the combined voting power of the Surviving Corporation’s
then outstanding voting securities.




(a transaction described in clauses (i) through (iii) shall herein be referred to
as a “Non-Control Transaction”);




     (4) A complete liquidation or dissolution of the Company; or




     (5) The consummation of a sale, lease, transfer, conveyance or other
disposition, in one or a series of related transactions, of all or substantially
all of the assets of the Company to any Person (other than a transfer to a
Subsidiary).



               (b) Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely
because any Person (the “Subject Person”) acquired Beneficial Ownership of more than the permitted
amount of the outstanding Voting Securities as a result of the acquisition of Voting Securities by
the Company which, by reducing the number of Voting Securities outstanding, increases the
proportional number of shares Beneficially Owned by the Subject Person, provided that if a Change
in Control would occur (but for the operation of this sentence) as a result of the acquisition of
Voting Securities by the Company, and after such share acquisition by the Company,
the Subject Person becomes the Beneficial Owner of any additional voting Securities which
increases the percentage of the then outstanding Voting



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Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.


               (c) Notwithstanding anything contained in this Agreement to the contrary, if the Executive’s
employment is terminated before a Change in Control and the Executive reasonably demonstrates that
such termination (1) was at the request of a third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in Control and who effectuates a Change in Control
(a “Third Party”) or (2) otherwise occurred in connection with, or in anticipation of, a Change in
Control which actually occurs, then for all purposes of this Agreement, the date of a Change in
Control with respect to the Executive shall mean the date immediately before the date of such
termination of the Executive’s employment.


          2.6. Company. For purposes of this Agreement, the “Company” shall mean H. J. Heinz
Company, a Pennsylvania corporation with its principal offices at Pittsburgh, Pennsylvania, and
shall include its “Successors and Assigns” (as hereinafter defined).


          2.7. Disability. For purposes of this Agreement, “Disability” shall mean a physical or
mental infirmity which impairs the Executive’s ability to substantially perform the Executive’s
duties with the Company for a period of one hundred eighty (180) consecutive days and the Executive
has not returned to the Executive’s full time employment before the Termination Date as stated in
the “Notice of Termination” (as hereinafter defined).


          2.8. Good Reason. For purposes of this Agreement:


               (a) “Good Reason” shall mean the occurrence after a Change in Control of any of the events or
conditions described in subsections (l) through (7) hereof:


      (1) a change in the Executive’s title, position, duties or responsibilities
(including reporting responsibilities) which represents a material adverse
change from the Executive’s title, position, duties or responsibilities as in
effect at any time within ninety (90) days preceding the date of a Change in
Control or at any time thereafter; or any removal of the Executive from or failure
to reappoint or reelect him to any one of such offices or


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positions that represents a material adverse change, except in connection with the
termination of the Executive’s employment for Disability, Cause, as a result of the
Executive’s death or by the Executive other than for Good Reason;




     (2) a material reduction in the Executive’s base salary or any failure to pay
the Executive any compensation or benefits to which the Executive is entitled
within five (5) days of the date due;




     (3) the Executive being required by the Company to perform the Executive’s
regular duties at any place outside a 30-mile radius from the place where the
Executive’s regular duties were performed immediately before the Change in Control,
except for reasonably required travel on the Company’s business which is not
materially greater than such travel requirements in effect immediately before the
Change in Control;




     (4) the failure by the Company to provide the Executive with compensation and
benefits, in the aggregate, that are not materially less (in opportunities) than
those provided for under the compensation and employee benefit plans, programs and
practices in which the Executive was participating at any time within ninety (90)
days preceding the date of a Change in Control or at any time thereafter, which may
include, but not be limited to, the plans listed on Appendix A;




     (5) any material breach by the Company of any provision of this Agreement;




     (6) any purported termination of the Executive’s employment for Cause by the
Company which does not comply with the terms of Section 2.4; or




     (7) the failure of the Company to obtain an agreement from any Successors and
Assigns to assume and agree to perform this Agreement, as contemplated in Section 7
hereof.



     In order to invoke a termination for Good Reason, the Executive shall provide written notice
to the Company of a condition described in clauses (1) through (7) within 90 days following the
Executive’s initial knowledge of the
existence of such condition or conditions, specifying in reasonable detail the conditions
constituting Good Reason, and the Company shall have 14 days following receipt of such written
notice during which it may remedy the condition. If the Company fails to remedy the specified
conditions within such



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14-day period, the Executive must terminate employment within 30 days
following the end of such 14-day period for termination to constitute a termination for Good
Reason.



               (b) Any event or condition described in this Section 2.8(a)(1) through (7) which occurs before
a Change in Control but which the Executive reasonably demonstrates (1) was at the request of a
Third Party, or (2) otherwise arose in connection with, or in anticipation of, a Change in Control
which actually occurs, shall constitute Good Reason for purposes of this Agreement notwithstanding
that it occurred before the Change in Control and without regard to the notice and cure provisions
of Section 2.8(a) which shall not apply with respect to such event or condition.



          2.9. Notice of Termination. For purposes of this Agreement, following a Change in
Control, “Notice of Termination” shall mean a written notice of termination from the Company of the
Executive’s employment which indicates the specific termination provision in this Agreement relied
upon and which sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive’s employment under the provision so indicated.




          2.10. Pro Rata Bonus. For purposes of this Agreement, “Pro Rata Bonus” shall mean an
amount equal to the Bonus Amount multiplied by a fraction, the numerator of which is the number of
days in the fiscal year through the Termination Date and the denominator of which is 365.




          2.11. Successors and Assigns. For purposes of this Agreement, “Successor and Assigns”
shall mean a corporation or other entity which has acquired or succeeded to all or substantially
all or the assets and business of the Company (including this Agreement) whether by operation of
law or otherwise.




          2.12. Termination Date. For purposes of this Agreement, “Termination Date” shall mean
in the case of the Executive’s death, the Executive’s date of death, in the case of Good Reason,
the last day of the Executive’s employment, and in all other cases, the date specified in the
Notice of Termination; provided, however, that if the Executive’s employment is
terminated by the Company for Cause or due to Disability, the date specified in the Notice of
Termination shall be at least 30 days from the date the Notice of Termination is given to the
Executive, provided that in the case of Disability the Executive shall not have returned to the
full-time performance of the Executive’s duties during such period of at least 30 days.




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     3. Termination of Employment.



          3.1. Amount of Compensation and Benefits. If, during the term of this Agreement, the
Executive’s employment with the Company shall be terminated within twenty-four (24) months
following a Change in Control, the Executive shall be entitled to the following compensation and
benefits:




               (a) If the Executive’s employment with the Company shall be terminated (1) by the Company for
Cause or Disability, (2) by reason of the Executive’s death, or (3) by the Executive for other than
Good Reason, the Company shall pay to the Executive the Accrued Compensation and, if such
termination is by the Company due to the Executive’s Disability or by reason of the Executive’s
death, a Pro Rata Bonus.



               (b) If the Executive’s employment with the Company shall be terminated for any reason other
than as specified in Section 3.1(a), the Executive shall be entitled to the following:




     (i) the Company shall pay the Executive all Accrued Compensation and
an amount equal to the bonus that the Executive would have received for the
year of termination, determined without regard to such termination, and
based on the actual performance of the Company, pro-rated for the number of
days the Executive was employed by the Company during such year.




     (ii) the Company shall pay the Executive as severance pay in lieu of
any further compensation for periods subsequent to the Termination Date, in
a single payment an amount in cash equal to [three (3)/two (2)] times the
sum of (A) the Base Amount and (B) the Bonus Amount; and




     (iii) for a number of months equal to [thirty-six (36)/twenty four
(24)] (the “Continuation Period”), the
Company shall at its expense continue on behalf of the Executive and the
Executive’s dependents and beneficiaries the life insurance, medical,
dental and hospitalization benefits provided (x) to the Executive
immediately prior to the Change in Control or at any time thereafter or (y)
to other similarly situated executives who continue in the



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employ of the
Company during the Continuation Period. The coverage and benefits
(including deductibles and costs) provided in this Section 3.1(b)(iii)
during the Continuation Period shall be no less favorable to the Executive
and the Executive’s dependents and beneficiaries, than the most favorable
of such coverages and benefits during any of the periods referred to in
clauses (x) and (y) above. The Company’s obligation hereunder with respect
to the foregoing benefits shall be limited to the extent that the Executive
becomes eligible for any such benefits pursuant to a subsequent employer’s
benefit plans (whether or not the Executive actually elects coverage), in
which case the Company may reduce the coverage of any benefits it is
required to provide the Executive hereunder as long as the aggregate
coverages and benefits of the combined benefit plans (computed assuming
that the Executive elected to participate in the subsequent employer’s
benefit plans to the maximum extent allowable) is no less favorable to the
Executive than the coverages and benefits required to be provided
hereunder. This subsection (iii) shall not be interpreted so as to limit
any benefits to which the Executive, the Executive’s dependents or
beneficiaries may be entitled under any of the Company’s employee benefit
plans, programs or practices following the Executive’s termination of
employment, including without limitation, retiree medical and life
insurance benefits; and




     (iv) the Company shall pay in a single payment an amount in cash equal
to the excess of (A) the lump sum actuarial equivalent of the aggregate
retirement benefit the Executive would have been entitled to receive under
the Company’s supplemental and other retirement plans including, but not
limited to, the retirement plans listed in Appendix A, had (w) the
Executive remained employed by the Company for an additional [two/three]
complete years of
credited service, (x) the Executive’s annual compensation during such
period been equal to the Executive’s Base Salary and the Bonus Amount, (y)
the Company made employer contributions to each defined contribution plan
in which the Executive was a participant at the Termination Date (in the
amount that would have been contributed based on the assumptions in (w) and
(x) above) and (z) the



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Executive been fully (100%) vested in the
Executive’s benefit under each retirement plan in which the Executive was a
participant, over (B) the lump sum actuarial equivalent of the aggregate
retirement benefit the Executive is actually entitled to receive under such
retirement plans. For purposes of this subsection (iv), the “lump sum
actuarial equivalent” shall be determined in accordance with the “Lump Sum
Factors” as prescribed under the terms of the Employees’ Retirement System
of H. J. Heinz Company Plan “A” – For Salaried Employees immediately
before the Executive’s termination of employment.



               (c) The amounts provided for in Sections 3.1(a) and 3.1(b)(i), (ii) and (iv) shall be paid in
a single lump sum cash payment as soon as reasonably practicable following the Executive’s
Termination Date (or earlier, if required by applicable law), provided that, the pro-rated bonus
described in Section 3.1(b)(i) shall be paid at the normally scheduled time for annual bonuses.



               (d) The Executive shall not be required to mitigate the amount of any payment provided for in
this Agreement by seeking other employment or otherwise and no such payment shall be offset or
reduced by the amount of any compensation or benefits provided to the Executive in any subsequent
employment except as provided in Section 3.1(b)(iii).



               (e) Notwithstanding the foregoing, the payments otherwise due hereunder may be limited to the
extent provided in Section 5 and Section 12(b) hereof.



          3.2. Coordination with other Compensation and Benefits.




               (a) The severance pay and benefits provided for in this Section 3 shall be in lieu of any
other severance or termination pay to which
the Executive may be entitled under any other Company plan, program, practice or arrangement
providing severance benefits.



               (b) The Executive’s entitlement to any other compensation or benefits shall be determined in
accordance with the Company’s employee benefit plans (including, the plans listed on Appendix A)
and other applicable programs, policies and practices then in effect.



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     4. Notice of Termination. Following a Change in Control, any purported termination of
the Executive’s employment by the Company and/or the Employer shall be communicated by Notice of
Termination to the Executive. For purposes of this Agreement, no such purported termination shall
be effective without such Notice of Termination.



     5. Excise Tax Limitation.



          (a) Notwithstanding anything contained in this Agreement to the contrary, to the extent that
the payments and benefits provided under this Agreement and benefits provided to, or for the
benefit of, the Executive under any other Company plan or agreement (such payments or benefits are
collectively referred to as the “Payments”) would be subject to the excise tax (the “Excise Tax”)
imposed under Section 4999 of the Internal Revenue Code of l986, as amended (the “Code”), the
Payments shall be reduced (but not below zero) if and to the extent necessary so that no Payment to
be made or benefit to be provided to the Executive shall be subject to the Excise Tax (such reduced
amount is hereinafter referred to as the “Limited Payment Amount”). The reduction provided for in
the preceding sentence shall not apply, and Section 6 below shall apply, if the Payments, prior to
any reduction in accordance with the preceding sentence, exceed one hundred and ten percent (110%)
of the maximum amount which could be received without incurring the Excise Tax.




          (b) If a reduction is required pursuant to Section 5(a), unless the Executive shall have given
prior written notice specifying a different order to the Company to effectuate the Limited Payment
Amount, the Company shall reduce or eliminate the Payments by first reducing or eliminating those
payments or benefits which are not payable in cash and then by reducing or eliminating cash
payments, in each case in reverse order beginning with payments or benefits which are to be paid
the farthest in time for the Determination (as hereinafter defined). Any notice given by the
Executive pursuant to the preceding sentence shall take precedence over the provisions of
any other plan, arrangement or agreement governing the Executive’s rights and entitlements to
any benefits or compensation.




          (c) An initial determination as to whether the Payments shall be reduced to the Limited
Payment Amount pursuant to the Plan and the calculation of such Limited Payment Amount shall be
made at the Company’s expense by an accounting firm selected by the Company which is designated as
one of the five largest accounting firms in the United States (the “Accounting Firm”). The
Accounting Firm shall provide its determination (the “Determination”) together with detailed
supporting calculations and




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documentation to the Company and the Executive within five (5) days of
the Termination Date if applicable, or such other time as requested by the Company or by the
Executive (provided the Executive reasonably believes that any of the Payments may be subject to
the Excise Tax) and, if the Accounting Firm determines that no Excise Tax is payable by the
Executive with respect to a Payment or Payments, it shall furnish to the Executive an opinion
reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such
Payment or Payments. Within ten (10) days of the delivery of the Determination to the Executive,
the Executive shall have the right to dispute the Determination (the “Dispute”). If there is no
Dispute, the Determination shall be binding, final and conclusive upon the Company and the
Executive subject to the application of Section 5(d) below.




          (d) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code,
it is possible that the Payments to be made to, or provided for the benefit of, the Executive
either have been made or will not be made by the Company which, in either case, will be
inconsistent with the limitations provided in Section 5(a) (hereinafter referred to as an “Excess
Payment” or “Underpayment” respectively). If it is established, pursuant to a final determination
of a court or an Internal Revenue Service (the “IRS”) proceeding which has been finally and
conclusively resolved, that an Excess Payment has been made, such Excess Payment shall be deemed
for all purposes to be a loan to the Executive made on the date the Executive received the Excess
Payment and the Executive shall repay the Excess Payment to the Company on demand (but not less
than ten (10) days after written notice is received by the Executive) together with interest on the
Excess Payment at the applicable “federal short term rate” prescribed pursuant to Code section
1274(d)(1)(C)(i) (hereinafter the “Applicable Federal Rate”) from the date of the Executive’s
receipt of such Excess Payment until the date of such repayment. In the event that it is determined
(i) by the Accounting Firm, the Company (which shall include the position taken by the Company, or
together
with its consolidated group, on its federal income tax return) or the IRS, (ii) pursuant to a
determination by a court, or (iii) upon the resolution to the Executive’s satisfaction of the
Dispute, that an Underpayment has occurred, the Company shall pay an amount equal to the
Underpayment to the Executive within ten (10) days of such determination or resolution together
with interest on such amount at the Applicable Federal Rate from the date such amount would have
been paid to the Executive until the date of payment.




     6. Excise Tax Indemnification. If the payments and benefits provided under this
Agreement and benefits provided to, or for the benefit of, the Executive under any other Company
plan
or agreement are subject to the excise



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tax imposed under Section 4999 of the Internal Revenue
Code of l986, as amended (the “Code”), or under any other similar provision of the laws of any
state or local jurisdiction within the United States (the “Excise Tax”), the Company shall
indemnify and hold harmless the Executive and the Executive’s heirs, executors, administrators and
permitted assigns (all such aforesaid parties shall be referred to as “Indemnified Parties”) from
and against any loss (“the Loss”) incurred by imposition on the Executive of the Excise Tax, such
indemnification to be implemented by paying to the Indemnified Parties an amount (“Indemnification
Payment”) as hereinafter provided. The intent of this Section 6 is to provide for payments or
reimbursements on a grossed-up basis which are sufficient, but not more than sufficient, to make
the Indemnified Parties economically whole with respect to any Excise Tax imposed on the
Executive’s Share, any costs of contesting any such Excise Tax and any other taxes imposed by
reason of a loan to the Indemnified Parties pending resolution of any such contest, and the
foregoing provisions are to be interpreted accordingly.



          6.1. Amount of Indemnification Payment. The Indemnification Payment shall be the
amount which, after deduction of all income taxes and additional federal, state and local taxes
(including, without limitation, any additional Excise Tax) required to be paid by the Executive in
respect of receipt of the Indemnification Payment (assuming, for this purpose, that the Executive
is subject to the highest marginal rate of federal income taxation in effect during the calendar
year in which the Indemnification Payment is to be made and that state and local income taxes are
due for such year at the highest marginal rates of taxation in effect in the state and locality of
the Executive’s residence on the date of payment, and applying the maximum reduction in federal
income taxes which could be obtained from deduction of such state and local taxes, but assuming
that the Executive has no other deductions or credits available to reduce such taxes), shall be
equal to the sum of (i) the Excise Tax
resulting in the Loss and (ii) the net amount of any interest, penalties or additions to tax
payable to any taxing authority (after allowing for the deduction of such amounts, to the extent
properly deductible, for federal, state or local income tax purposes) as a result of the Loss. The
amount determined above shall be adjusted to take into account on a grossed-up basis any expenses
described in Section 6.3(a) and any additional taxes incurred by reason of the inclusion in income
of, or imputation of, interest on any advance pursuant to Section 6.3(b).




          6.2.  Time of Indemnification Payment. The Indemnification Payment (or each applicable
portion thereof) shall be made within thirty (30) days after the compensation or benefits (or each
applicable portion thereof) to which the Excise Tax (as determined by the Company) relates is
received by the




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Executive. Additional Indemnification Payments shall be made within thirty (30)
days after receipt by the Company of written notice from the Executive of any claim by a taxing
authority that any additional Excise Tax is due, which notice by the Executive shall include a copy
of the written statement from the taxing authority setting forth the amount of additional tax,
interest, penalties or additions to tax claimed to be due in respect thereof; provided that, if a
contest is being conducted pursuant to Section 6.3 below, any additional Indemnification Payments
(or applicable portion thereof) shall not be required to be made shall until 30 days after the
completion or termination of such contest except as provided in Section 6.3(b) below. Any
Indemnification Payment required hereunder and not timely made shall accrue interest until paid at
the Applicable Federal Rate. Without limiting the application of the foregoing, in all
events, Indemnification Payments for tax amounts owed by the Executive shall be paid no later than
the end of the calendar year following the calendar year in which the Executive remits such tax
amounts to the applicable tax authority.




          6.3. Management of Tax Contests. The Company shall have the sole and exclusive right
to initiate and to conduct on behalf of the Indemnified Parties all aspects of any contest or
appeal of any tax controversy relating to the Excise Tax. The Indemnified Parties shall cooperate
with the Company in the conduct of any such contest or appeal (at the expense of the Company). The
indemnifications provided for in this Section 6 are conditional on the Company receiving from the
Indemnified Parties timely notice of any actual or threatened tax controversy relating to the
Excise Tax (including, without limitation, an inquiry or notice of audit by a taxing authority with
respect to the years
involved or any request for extension of the period for assessment or collection of taxes for
such years) and upon the continuing cooperation of the Indemnified Parties during the course of any
such contest or appeal.




          (a) During the course of any such contest or appeal the Company shall promptly defray any and
all expenses that the Indemnified Parties may incur as a result of contesting such proposed Excise
Tax, including, without limitation, indemnification and prompt payment of all costs, legal and
accounting fees and disbursements, bonding fees, or other litigation related expenses so incurred.




          (b) If the Company shall elect to contest a proposed Excise Tax by causing the Indemnified
Parties to make payment and then seek a refund,








15









 




then the Company shall advance to the Indemnified
Parties, on an interest-free basis, the aggregate amount of the required payment. If as a result of
such contest a refund becomes payable to the Indemnified Parties, upon receipt of such refund the
Indemnified Parties shall promptly pay over to the Company the amount of such refund (and included
interest) received by the Indemnified Parties (which amount shall be deemed to be in repayment of
the loan advanced by the Company to the extent fairly attributable thereto), subject to offset of
any Indemnification Payment then due and owing by the Company to the Indemnified Parties pursuant
to this Section 6. Upon final denial of any such refund or a portion thereof, the Company shall
forgive the amount of such advance fairly attributable to the amount not refunded (which
forgiveness shall be applied against the Indemnification Payment determined under Section 6.1.





     7. Successors; Nonalienation.



          7.1. Successors.




          (a) This Agreement shall be binding upon and shall inure to the benefit of the Company, its
Successors and Assigns and the Company shall require any Successor and Assigns to expressly assume
and agree to perform this Agreement in the same manner and to the same extent that the Company
would be required to perform it if no such succession or assignment had taken place.




          (b) This Agreement shall inure to the benefit of and be enforceable by the Executive’s legal
personal representative.




     7.2. Nonalienation. Neither this Agreement nor any right or interest hereunder shall
be assignable or transferable by the Executive, the Executive’s beneficiaries or legal
representatives, except by will or by the laws of descent and distribution.



     8. Settlement of Claims and Resolution of Disputes. The Company’s obligation to make
the payments provided for in this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Company may have against the Executive
or others. Any disputes arising under or in connection with this Agreement shall, at the discretion
of the Executive or the Company, be resolved by binding arbitration, to be held in Pittsburgh,
Pennsylvania, in accordance with the rules and procedures of the American Arbitration Association.
Judgment upon the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction



16









 







thereof. If arbitration is not requested by either party, any action brought by any
party to this Agreement shall be brought and maintained in a court of competent jurisdiction in
Pittsburgh, Pennsylvania.



     9. Fees and Expenses.



          (a) Subject to Section 9(b) below, the Company shall pay all reasonable legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the Executive as they
become due as a result of (1) the Executive’s termination of employment (including all such fees
and expenses, if any, incurred in contesting or disputing any such termination of employment),
(2) the Executive seeking to obtain or enforce any right or benefit provided by this Agreement or
by any other plan or arrangement maintained by the Company under which the Executive is or may be
entitled to receive benefits, and (3) the Executive’s hearing before the Board as contemplated in
Section 2.4 of this Agreement; provided, however, that the circumstances set forth in clauses (1)
and (2) (other than as a result of the Executive’s termination of employment under circumstances
described in Sections 2.5(c) and 2.8(b)) occurred on or after a Change in Control.




          (b) Section 9(a) shall not apply, and all legal fees and related expenses incurred by the
Executive shall remain the responsibility of the Executive, if the Executive does not prevail on at
least one material issue in dispute in such contest or dispute.




     10. Notice. For the purposes of this Agreement, notices and all other communications
provided for in the Agreement (including the Notice of Termination) shall be in writing and shall
be deemed to have been duly given when personally delivered or sent by certified mail, return
receipt requested, postage prepaid, addressed to the respective addresses last given by each party
to the other, provided that all notices to the Company shall be directed to the attention of the
Board with a copy to the Secretary of the Company. All notices and communications shall be deemed
to have been received on the date of delivery thereof or on the third business day after the
mailing thereof, except that notice of change of address shall be effective only upon receipt.



     11. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit the
Executive’s continuing or future participation in any benefit, bonus, incentive or other plan or
program provided by the Company (except for any severance or termination policies, plans, programs
or practices) and for which the Executive may qualify, nor shall anything herein limit or reduce
such rights as the Executive may have under any other agreements with the Company



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(except for any
severance or termination agreement). Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Company shall be payable in
accordance with such plan or program, except as explicitly modified by this Agreement.


     12. Miscellaneous.


          (a) No provision of this Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by the Executive and the Company. No
waiver by either party hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreement or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are not expressly set
forth in this Agreement.


          (b) Notwithstanding Section 12(a) or any other provision of this Agreement to the contrary, if
consummation of a transaction may be contingent on the parties’ ability to use pooling of interests
accounting and the Company reasonably determines (after consultation with its independent auditors)
that a provision of this Agreement would preclude the use of pooling of interests
accounting with respect to such transaction, the Company may, with or without the acquiescence
of the Executive, eliminate or modify that provision to the extent required to allow pooling of
interests accounting.


     13. Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania without giving effect to the conflict
of laws principles thereof.


     14. Severability. The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or enforceability of
the other provisions hereof.


     15. Code
Section 409A. Notwithstanding any provision to the contrary, all provisions of this
Agreement shall be construed and interpreted to comply with Code section 409A and applicable
regulations thereunder and if necessary, any provision shall be held null and void to the extent
such provision (or part thereof) fails to comply with Code section 409A or regulations thereunder.
For purposes of the limitations on nonqualified deferred compensation under Code section 409A, each
payment of compensation under this Agreement shall be treated as a separate payment of compensation
for 


18








 







purposes of applying the deferral election rules and the exclusion for certain short-term
deferral amounts under Code section 409A. Any amounts payable under this Agreement solely on
account of an involuntary separation from service within the meaning of Code section 409A shall be
excludible from the requirements of Code section 409A, either as involuntary separation pay or as
short-term deferral amounts (e.g., amounts payable under the schedule prior to March 15 of the
calendar year following the calendar year of involuntary separation) to the maximum possible
extent. To the extent that deferred compensation subject to the requirements of Code section 409A
becomes payable under this Agreement to a “specified employee” (within the meaning of Code section
409A) on account of separation from service, any such payments shall be delayed by six months to
the extent necessary to comply with the requirements of Code section 409A. Further, any
reimbursements or in-kind benefits provided under this Agreement that are subject to Code section
409A shall be made or provided in accordance with the requirements of Code section 409A, including,
where applicable, the requirement that (i) any reimbursement is for expenses incurred during the
period of time specified in the Agreement, (ii) the amount of expenses eligible for reimbursement,
or in-kind benefits provided, during a calendar year may not affect the expenses eligible for
reimbursement, or in-kind benefits to be provided, in any other calendar year, (iii) the
reimbursement of an eligible
expense will be made no later than the last day of the calendar year following the year in which
the expense is incurred, and (iv) the right to reimbursement or in-kind benefits is not subject to
liquidation or exchange for another benefit.



     16. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto and supersedes all prior agreements, if any, understandings and arrangements, oral
or written, between the parties hereto with respect to the subject matter hereof.



[Remainder of page intentionally left blank; signature page to follow.]




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     IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized officer and the Executive has executed this Agreement as of the day and year first above
written.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	H. J. HEINZ COMPANY	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	ATTEST:	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	Name: Rene Biedzinski	 	 	 	 	 	Name:	 	D.E.I. Smyth	 	 
	Title: Secretary	 	 	 	 	 	Title:	 	Senior Vice President -
Corporate and Government
Affairs and Chief
Administrative Officer	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	[Insert Name of the Executive]	 	 






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APPENDIX A




COMPENSATION AND BENEFIT PLANS




Retirement Plans




H. J. Heinz Company Employees Retirement and Savings Plan

Employees’ Retirement System of H. J. Heinz Company Plan “A” – For Salaried Employees

H. J. Heinz Company Supplemental Executive Retirement Plan

H. J. Heinz Company Employees Retirement and Savings Excess Plan




Welfare Plans




H. J. Heinz Company Non-bargaining Employees Welfare Benefit Program




     Components of Welfare Benefits Program




	 	•	 	Medical and Prescription Drug Coverage
	 
	 	•	 	Dental Coverage
	 
	 	•	 	Vision Coverage
	 
	 	•	 	Short-Term Disability Plan
	 
	 	•	 	Medical and Dependent Care Flexible Spending Accounts
	 
	 	•	 	Tuition Reimbursement Plan




H. J. Heinz Company Voluntary Employees’ Beneficiary Association Long
Term Disability Plan*




H. J. Heinz Company Severance Pay Plan




Executive Life Insurance Plan




Executive Group Umbrella Liability Plan




Long Term Care Plan






 




			
	*	 	Executives are eligible for Supplemental Disability coverage on preferred terms with UNUM
Provident. This is a voluntary program, at the executive’s own expense.




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APPENDIX A (CONT’D)




COMPENSATION AND BENEFIT PLANS




Other Compensation and Benefit Plans




H. J. Heinz Company Incentive Compensation Plan (“SSP”)




H. J. Heinz Company Senior Executive Incentive Compensation Plan

Global Stock Purchase Plan




1986 Deferred Compensation Program for Executives of H. J. Heinz Company and Affiliated Companies




H. J. Heinz Company Executive Deferred Compensation Plan




Stock Option Plans





	 	•	 	H. J. Heinz Company 1990 Stock Option Plan
	 
	 	•	 	H. J. Heinz Company 1994 Stock Option Plan
	 
	 	•	 	H. J. Heinz Company 1996 Stock Option Plan
	 
	 	•	 	H. J. Heinz Company 2000 Stock Option Plan
	 
	 	•	 	H. J. Heinz Company FY2003 Stock Incentive Plan




Plus any employee benefit plans, programs and practices that would be specific to an Executive who
does not participate in U.S. benefit plans, programs and practices.





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