exv10wawxxxix






Exhibit 10(a) (xxxix)




FY12 U.S. EMPLOYEES

NON-PENSIONABLE TIME BASED VESTING




Restricted Stock Unit Award and Agreement



[DATE]



Dear _____________________:



H. J. Heinz Company is pleased to confirm that, effective as of ______, you have been granted an
award of Restricted Stock Units (“RSUs”) in accordance with the terms and conditions of the Third
Amended and Restated H. J. Heinz Company Fiscal Year 2003 Stock Incentive Plan (the “Plan”). This
Award is also made under and governed by the terms and conditions of this letter agreement
(“Agreement”), which shall control in the event of a conflict with the terms and conditions of the
Plan. For purposes of this Agreement, the “Company” shall refer to H. J. Heinz Company and its
Subsidiaries. Unless otherwise defined in this Agreement, all capitalized terms used in this
Agreement shall have the same meanings as the capitalized terms in the Plan, which are hereby
incorporated by reference into this Agreement.





	1.	 	RSU Award. You have been awarded a total of ____________ RSUs.
	 
	2.	 	RSU Account. RSUs entitle you to receive a corresponding number of shares of H. J.
Heinz Company Common Stock (“Common Stock”) in the future, subject to the conditions and
restrictions set forth in this Agreement, including, without limitation, the vesting
conditions set forth in Section 3 below. Your RSUs will be credited to a separate account
established and maintained by the Company on your behalf or by a third party engaged by the
Company for the purpose of implementing, administering, and managing the Plan. Until the
Distribution Date (as defined herein), the value of your unvested RSUs is subject to change
based on increases or decreases in the market price of the Common Stock. Because the RSUs are
not actual shares of Common Stock, you cannot exercise voting rights on them until the
Distribution Date.
	 
	3.	 	Vesting. You will become vested in the RSUs credited to your account according to
the following schedule: Twenty-five percent (25%) per year on each of the first four
anniversaries of the grant date.
	 
	4.	 	Termination of Employment. The termination of your employment with the Company will
have the following effect on your RSUs:






	 	(a)	 	Retirement. If the termination of your employment with the Company is the result
of Retirement, any RSUs granted hereunder that remain unvested as of your Date of
Termination shall continue to vest in accordance with the vesting schedule set forth in
Section 3 above, subject to the requirements of Sections 5 and 6 below.
	 
	 	(b)	 	Disability. If the termination of your employment with the Company is the result
of Disability, any RSUs granted hereunder that remain unvested as of your Date of
Termination shall vest in accordance with the vesting schedule set forth in Section 3




1









 






	 	 	 	above, subject to the requirements of Sections 5 and 6 of this Agreement, but in no event
later than the last business day of the month of the one year anniversary of your Date of
Termination.






	 	(c)	 	Involuntary Termination without Cause. If the termination of your employment with
the Company is the result of involuntary termination without Cause, you shall forfeit on
your Date of Termination any RSUs that remain unvested as of that date; provided,
however, that if you execute a release of claims against the Company in the form provided
by the Company, any RSUs granted hereunder that remain unvested as of your Date of
Termination shall vest in accordance with the vesting schedule set forth in Section 3
above, subject to the requirements of Sections 5 and 6 of this Agreement, but in no event
later than the last business day of the month of the one year anniversary of your Date of
Termination.
	 
	 	(d)	 	Death. In the event that you should die while you are continuing to perform
services for the Company or following Retirement, any RSUs that remain unvested as of the
date of your death shall continue to vest in accordance with the vesting schedule set
forth in Section 3 above, but in no event later than the last business day of the month
of the one year anniversary of the date of your death.
	 
	 	(e)	 	Termination Following a Change in Control. In the event you terminate your
employment with the Company for Good Reason following a Change in Control, or the Company
terminates your employment other than for Cause following a Change in Control, any RSUs
that remain unvested as of your Date of Termination shall vest as set forth in the Plan.
	 
	 	(f)	 	Other Termination. If your employment with the Company terminates for any reason
other than as set forth in subsection (a), (b), (c), (d), or (e) above, including without
limitation any voluntary termination of employment or an involuntary termination for
Cause, no further vesting will occur and you will immediately forfeit all of your rights
in any RSUs that remain unvested as of your Date of Termination.






	5.	 	Non-Solicitation. You agree that you shall not, during the term of your employment
by the Company and for eighteen (18) months after the date of the termination of your
employment with the Company, regardless of the reason for the termination, either directly or
indirectly, solicit, take away or attempt to solicit or take away any employee of the Company,
either for your own purpose or for any other person or entity. You further agree that you
shall not, during the term of your employment by the Company or at any time thereafter, use or
disclose Confidential Information (as defined in Section 6 below) except as directed by, and
in furtherance of the business purposes of, the Company. You acknowledge (i) that the
non-solicitation provision set forth in this Section 5 is essential for the proper protection
of the business of the Company; (ii) that it
is essential to the protection of the Company’s goodwill and to the maintenance of the
Company’s competitive position that any Confidential Information be kept secret and not
disclosed to others; and (iii) that the breach or threatened breach of this Section 5 will




2









 












	 	 	result in irreparable injury to the Company for which there is no adequate remedy at law
because, among other things, it is not readily susceptible of proof as to the monetary
damages that would result to the Company. You consent to the issuance of any restraining
order or preliminary restraining order or injunction with respect to any conduct by you that
is directly or indirectly a breach or a threatened breach of this Section 5. Any breach by
you of the provisions of this Section 5 will, at the option of the Company (in its sole
discretion) and in addition to all other rights and remedies available to the Company at
law, in equity or under this Agreement, result in the forfeiture of all of your rights in
any RSUs that remain unvested as of the date of such breach.






	6.	 	Non-Competition/Confidential Information. As used in this Section 6, the following
terms shall have the respective indicated meanings:
	 
	 	 	“Affiliated Company or Companies” means any person, corporation, limited liability company,
partnership, or other entity controlling, controlled by or under common control with the
Company.
	 
	 	 	“Confidential Information” means technical or business information about or relating to the
Company and/or its products, processes, methods, engineering, technology, purchasing,
marketing, selling, and services not readily available to the public or generally known in
the trade, including but not limited to: inventions; ideas; improvements; discoveries;
developments; formulations; ingredients; recipes; specifications; designs; standards;
financial data; sales, marketing 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, whether or not they originated with you or information which the
Company received from third parties under an obligation of confidentiality.
	 
	 	 	“Conflicting Product” means any product or process of any person or organization, other than
the Company, in existence or under development, (i) that competes with a product or process
of the Company upon or with which you shall have worked during the two years prior to the
termination of your employment with the Company or (ii) whose use or marketability could be
enhanced by application to it of Confidential Information acquired by you in connection with
your employment by the Company during such two-year period. For purposes of this
definition, it shall be conclusively presumed that you have knowledge of information to
which you have been directly exposed through actual receipt or review of memoranda or
documents containing such information or through actual attendance at meetings at which such
information was discussed or disclosed.
	 
	 	 	“Conflicting Organization” means any person or organization that is engaged in or about to
become engaged in research on or the development, production, marketing, or selling of, or
the use in production, marketing, or sale of, a Conflicting Product.
	 
	 	 	In partial consideration for the RSUs granted to you hereunder, you agree that, for a period
of eighteen (18) months after the date of the termination of your employment with




3









 












	 	 	the
Company, you shall not render services, directly or indirectly, as a director, officer,
employee, agent, consultant or otherwise to any Conflicting Organization in any geographic
area or territory in which such Conflicting Organization is engaged in or about to become
engaged in the research on or the development, production, marketing, or sale of, or the use
in production, marketing, or sale of, a Conflicting Product. The foregoing limitation does
not apply to a Conflicting Organization whose business is diversified and that, as to that
part of its business to which you render services, is not engaged in the development,
production, marketing, use or, sale of a Conflicting Product, provided that the Company
shall receive separate written assurances satisfactory to the Company from you and the
Conflicting Organization that you shall not render services during such period with respect
to a Conflicting Product or directly or indirectly provide or reveal Confidential
Information to such organization.
	 
	 	 	You acknowledge and agree that the non-competitive restrictions set forth in this Section 6
are reasonable and necessary to protect the goodwill and legitimate business interests of
the Company and to prevent the disclosure of the Company’s Confidential Information and
trade secrets and, further, that you have the business experience and abilities such that
you would be able to obtain employment in a business other than with a Conflicting
Organization.
	 
	 	 	Any breach by you of the provisions of this Section 6 will, at the option of the Company (in
its sole discretion), and in addition to all other rights and remedies available to the
Company at law, in equity, or under this Agreement, result in the forfeiture of all of your
rights in any RSUs that remain unvested as of the date of such breach.
	 
	 	 	In addition to the remedies stated in the preceding paragraph, the Company shall, if it
shall so elect, be entitled to institute legal proceedings to obtain damages for a breach by
you of this Section 6, or to enforce the specific performance of the Agreement by you and to
enjoin you from any further violation of this Section 6, or to exercise such remedies
cumulatively or in conjunction with all other rights and remedies provided by law. You
acknowledge, however, that the remedies at law for any breach by you of the provisions of
this Section 6 may be inadequate and that 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 permitted by applicable
law, a temporary restraining order (or similar procedural device) may be granted immediately
upon the commencement of such action.
	 
	 	 	You agree that if any of the provisions herein shall for any reason be determined by a court
of competent jurisdiction to be overly broad as to scope of activity, duration, or
geography, such provision shall be limited or reduced so as to be enforceable to the extent
compatible with existing law.






	7.	 	Dividend Equivalents. An amount equal to the dividends payable on the shares of
Common Stock represented by your unvested RSUs will be accrued as of each quarterly period
dividend payment record date and will be credited to your RSU account and distributed upon
vesting of such RSUs, subject to forfeiture of unvested RSUs and




4









 












	 	 	undistributed cash dividend
equivalents accrued on such unvested RSUs or as described in Section 4(c), (e), and (f) and
Sections 5 and 6. These payments will be calculated based upon the number of such vesting
RSUs that were in your account as of each quarterly period dividend record date prior to
vesting. These payments will be reported as income to the applicable taxing authorities, and
federal, state, local and/or foreign income and/or any employment taxes will be withheld from
such payments as and to the extent required by applicable law.






	8.	 	Distribution. All RSU distributions will be made in the form of actual shares of
Common Stock and will be distributed to you as soon as administratively practicable after one
of the following dates (each, a “Distribution Date”):






	 	(a)	 	Default Distribution Date. Shares of Common Stock representing your RSUs will
be distributed to you on the date the RSUs vest, or, if such date is not a business
day, on the next business day, unless you have already made an election to defer
receipt to a later date, as provided in subsection (b) below.
	 
	 	(b)	 	Deferred Distribution Date. To the extent permitted by the MDCC, you may have
elected to defer distribution of your RSUs to a date subsequent to the default
Distribution Date by providing a written election form to the Company in accordance
with the provisions of Internal Revenue Code (“Code”) section 409A.
	 
	 	(c)	 	Separation of Service of Specified Employee. If your distribution is on
account of your “separation from service” as defined in Code section 409A and the
regulations thereunder, and if you are a “specified employee,” as defined in Code
section 409A(a)(2)(B)(i) on your Distribution Date, and your distribution constitutes
the “deferral of compensation” as defined in Code section 409A and the regulations
thereunder, your distribution will be automatically deferred until the date that is six
(6) months after your “separation from service,” regardless of your default
Distribution Date or your deferred Distribution Date election.






	 	 	Subject to Section 8(c), certificates representing the distributed shares of Common Stock
will be delivered to the firm maintaining your account as soon as practicable after a
Distribution Date occurs. Notwithstanding the foregoing, and subject to Section 8(c), all
vested RSUs will be distributed to you at the close of business on the day following the
last day of your employment with the Company, or as soon as administratively practicable
thereafter, if you terminate employment with the Company for any reason and deferred RSUs
that vest after the date of your termination will be distributed to you as soon as
administratively practicable after they vest, in a lump sum if you have elected a lump sum
distribution, or in installments commencing upon termination of employment if you have
elected an installment distribution. Notwithstanding the foregoing, RSU
distributions will be made at a date other than as described above to the extent necessary
to comply with the requirements of Code section 409A.






	9.	 	Impact on Benefits. Your RSU Award will not be included as compensation
for the year of the grant for purposes of the H. J. Heinz Company
Supplemental Executive




5









 






	 	 	Retirement Plan (as amended and restated
effective September 1, 2007), the H. J. Heinz Company Employees
Retirement and Savings Excess Plan (as amended and restated effective
January 1, 2005), and/or any other plan of the Company, regardless of
whether or not the RSUs subsequently vest.
	 
	10.	 	Tax Withholding. On the Distribution Date, the Company will withhold a
number of shares of Common Stock that is equal, based on the Fair
Market Value of the Common Stock on the Distribution Date, to the
amount of the federal, state, local, and/or foreign income and/or
employment taxes required to be collected or withheld with respect to
the distribution, or make arrangements satisfactory to the Company for
the collection thereof; and after you have achieved retirement
eligibility under the provisions of any formal retirement plan of the
Company or Subsidiary, you will be required to remit to the Company a
cash amount to satisfy Federal Insurance Contributions Act taxes on
all unvested RSUs.
	 
	11.	 	Non-Transferability. Your RSUs may not be sold, transferred, pledged,
assigned or otherwise encumbered except by will or the laws of descent
and distribution. You may also designate a beneficiary(ies) in the
event that you die before a Distribution Date occurs, who shall
succeed to all your rights and obligations under this Agreement and
the Plan. If you do not designate a beneficiary, your RSUs will pass
to the person or persons entitled to receive them under your will. If
you shall have failed to make a testamentary disposition of your RSUs
in your will or shall have died intestate, your RSUs will pass to the
legal representative or representatives of your estate.
	 
	12.	 	Employment At-Will. You acknowledge and agree that nothing in this
Agreement or the Plan shall confer upon you any right with respect to
future awards or continuation of your employment, nor shall it
constitute an employment agreement or interfere in any way with your
right or the right of Company to terminate your employment at any
time, with or without cause, and with or without notice.
	 
	13.	 	Collection and Use of Personal Data. You consent to the collection, use, and
processing of personal data
(including name, home
address and telephone
number, identification
number, and number of RSUs
held on your behalf) by the
Company or a third party
engaged by the Company for
the purpose of implementing,
administering, and managing
the Plan and any other stock
option or stock incentive
plans of the Company
(collectively, the “Plans”).
You further consent to the
release of personal data (a)
to such a third party
administrator, which, at the
option of the Company, may
be designated as the
exclusive broker in
connection with the Plans,
or (b) to any Subsidiary of
the Company, wherever
located. You hereby waive
any data privacy rights with
respect to such data to the
extent that receipt,
possession, use, retention,
or transfer of the data is
authorized hereunder.






	14.	 	Future Awards. The Plan is discretionary in nature and the Company may modify,
cancel, or terminate it at any time without prior notice in accordance with the terms of the
Plan. While RSUs or other awards may be granted under the Plan on one or more occasions or
even on a regular schedule, each grant is a one-time event, is not an




6









 






	 	 	entitlement to an award
of RSUs in the future, and does not create any contractual or other right to receive an award
of RSUs, compensation or benefits in lieu of RSUs, or any other compensation or benefits in
the future.
	 
	15.	 	Compliance with Stock Ownership Guidelines. All RSUs granted to you under this
Agreement shall be counted as shares of Common Stock that are owned by you for purposes of
satisfying the minimum share requirements under the Company’s Stock Ownership Guidelines
(“SOG”). Notwithstanding the foregoing, you acknowledge and agree that, with the exception of
the number of shares of Common Stock withheld to satisfy income tax withholding requirements
pursuant to Section 10 above, 75% of the shares of Common Stock represented by the RSUs
granted to you hereunder cannot be sold or otherwise transferred, even after the Distribution
Date, unless and until you have met the Company’s SOG’s minimum share ownership requirements.
The MDCC may not approve additional RSU awards to you unless you are in compliance with the
terms of this Section 15 and the applicable SOG requirements.
	 
	16.	 	Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania, without regard to its choice of law provisions.
	 
	17.	 	Internal Revenue Code Section 409A. Unless a deferral election satisfying the
requirements of Code section 409A is offered with respect to this Award and the distribution
of this Award is deferred by reason of a deferral election by you, or unless you have achieved
retirement eligibility under the provisions of any formal retirement plan of the Company or
Subsidiary, it is intended that this award shall not constitute the “deferral of compensation”
within the meaning of Code section 409A and, as a result, shall not be subject to the
requirements of Code section 409A. The Plan and this Award Agreement are to be interpreted in
a manner consistent with this intention. Absent a deferral election, or unless you have
achieved retirement eligibility under the provisions of any formal retirement plan of the
Company or Subsidiary, and notwithstanding any other provision in the Plan, a new award may
not be issued if such Award would be subject to Code section 409A at the time of grant, and an
existing Award may not be modified in a manner that would cause such Award to become subject
to Code section 409A at the time of such modification.




7









 











This RSU Award is subject to your on-line acceptance of the terms and conditions of this Agreement
through the Fidelity website.




	 	 	 	 	 
	 	H. J. HEINZ COMPANY

 	 
	 	By:  	/s/ William R. Johnson
 	 
	 	 	William R. Johnson 	 
	 	 	Chairman of the Board, President and

Chief Executive Officer 	 
	 



Accepted: Signed electronically




Date: Acceptance Date





8