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