<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 2, 1995
REGISTRATION NO. 33-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
H.J. HEINZ COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
PENNSYLVANIA 25-0542520
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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)
---------------
COPY TO:
JAMES L. PURCELL, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3000
---------------
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 solely in connection with dividend or
interest reinvestment plans, please check the following box. [X]
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>
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE
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<S> <C> <C> <C> <C>
Common Stock, $.25 par
value................... 175,000 $43.00 $7,525,000.00 $2,595.00
</TABLE>
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(1) 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.
---------------
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>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+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 2, 1995
PROSPECTUS
175,000 SHARES
H.J. HEINZ COMPANY
COMMON STOCK
-----------
All of the shares of common stock, par value $.25 per share ("Common Stock"),
of H.J. Heinz Company (the "Company") offered hereby (the "Offering") may be
sold from time to time by AT&T Investment Management Corp. (the "Selling
Shareholder") in transactions on the New York Stock Exchange, the Pacific Stock
Exchange or otherwise at prices and on terms prevailing at the time of sale, at
prices related to the then-current market price or in negotiated transactions
or otherwise. See "Plan of Distribution." The aggregate proceeds to the Selling
Shareholder from the sale of the Common Stock offered hereby will be the
purchase price thereof, less the aggregate brokerage commissions, agent's
discount or underwriter's discount, if any, and the expenses of distribution
not borne by the Company. The Company will not receive any of the proceeds from
the sale of the Common Stock offered hereby. All expenses incurred in
connection with this Offering, estimated at $24,595, will be borne by the
Company, other than any commissions or discounts paid or allowed by the Selling
Shareholder to underwriters, dealers, brokers or agents.
All of the shares of Common Stock offered hereby have been "restricted
securities" under the Securities Act of 1933, as amended (the "Securities
Act"), prior to their registration under the registration statement of which
this Prospectus is a part. An affiliate of the Company sold a total of 175,000
shares of Common Stock to the Selling Shareholder in a private transaction in
May 1995, all of which are being registered. See "Selling Shareholder."
The Common Stock is traded on the New York Stock Exchange and the Pacific
Stock Exchange under the symbol "HNZ." On August 1, 1995, the last reported
sales price of the Common Stock on the New York Stock Exchange was $44 1/8 per
share.
-----------
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.
-----------
THE DATE OF THIS PROSPECTUS IS , 1995
<PAGE>
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 and
the Registration Statement (as defined below) 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.
2
<PAGE>
THE COMPANY
H.J. Heinz Company was incorporated in Pennsylvania on July 27, 1900. In
1905, it succeeded to the business of a partnership operating under the same
name which had developed from a food business founded in 1869 at Sharpsburg,
Pennsylvania by Henry J. Heinz. H.J. Heinz Company and its consolidated
subsidiaries (collectively, the "Company") manufacture and market an extensive
line of processed food products throughout the world. The Company's products
include ketchup, tuna and other seafood products, baby food, frozen potato
products, pet food, lower-calorie products (frozen entrees, frozen desserts,
frozen breakfasts, dairy and other products), soup (canned and frozen),
sauces/pastes, condiments and pickles, beans, coated products, pasta, bakery
products, chicken, frozen pizza and pizza components, full calorie frozen
dinners and entrees, vegetables (frozen and canned), ice cream and ice cream
novelties, edible oils, vinegar, margarine/shortening, juices and other
processed food products. The Company operates principally in one segment of
business--processed food products--which represents more than 90% of
consolidated sales. The Company also operates and franchises weight control
classes and operates other related programs and activities.
The Company's executive offices are located at 600 Grant Street, Pittsburgh,
Pennsylvania 15219. Its telephone number is (412) 456-5700.
3
<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.
SELLING SHAREHOLDER
The 175,000 shares of Common stock offered hereby are being registered
pursuant to a Registration Rights Agreement, dated as of May 2, 1995, entered
into by the Company and AT&T Investment Management Corp. (the "Selling
Shareholder") in connection with the sale by the Company to the Selling
Shareholder of 175,000 shares of Common Stock under a Stock Purchase
Agreement, dated as of May 2, 1995, between the Company and the Selling
Shareholder. The 175,000 shares of Heinz Common Stock owned of record by the
Selling Shareholder were purchased and are held by it for the account and
benefit of the AT&T Master Pension Trust. The Selling Shareholder has advised
the Company that (i) investment advisers/managers also hold shares of Heinz
Common Stock for the account and benefit of the AT&T Master Pension Trust, and
(ii) the aggregate number of all such shares of Common Stock so held at June
30, 1995 (the latest date for which there is available information) was
924,518 (including the 175,000 shares held by the Selling Shareholder). All
such shares together constitute less than one-half of one percent (0.5%) of
the outstanding Common Stock of the Company.
PLAN OF DISTRIBUTION
The Selling Shareholder has advised the Company that it may from time to
time offer and sell the shares of Common Stock offered hereby on the New York
Stock Exchange (the "NYSE"), the Pacific Stock Exchange (the "PSE"), in
privately negotiated transactions or otherwise at prices prevailing in such
market or as may be negotiated at the time of sale. Such shares may also be
publicly offered through agents, underwriters or dealers, in which event the
Selling Shareholder may enter into agreements with respect to such offering.
In effecting sales, brokers and dealers engaged by the Selling Shareholder may
arrange for other brokers or dealers to participate. Brokers or dealers will
receive usual and customary commissions or discounts from the Selling
Shareholder in amounts to be negotiated (and, if any such broker-dealer acts
as agent for the purchaser of such shares, from such purchaser). Brokers or
dealers may agree with the Selling Shareholder to sell a specified number of
shares at a stipulated price per share and, to the extent such a broker or
dealer is unable to do so acting as agent for the Selling Shareholder, to
purchase as principal any unsold shares at the price required to fulfill the
broker-dealer commitment to the Selling Shareholder. Brokers or dealers who
acquire shares as principal may thereafter resell such shares from time to
time in transactions (which may involve crosses and block transactions and
which may involve sales to and through other brokers or dealers, including
transactions of the nature described above) on the NYSE, the PSE, in
negotiated transactions or otherwise, at market prices prevailing at the time
of sale or at negotiated prices or otherwise, and in connection with such
resales may pay or receive from the purchasers of such shares commissions as
described above.
All expenses incurred in connection with the registration of the shares
offered hereby, estimated at $24,595, will be borne by the Company, except
that any brokerage commissions or discounts paid or allowed by the Selling
Shareholder to brokers, agents, underwriters or dealers shall be payable by
the Selling Shareholder. In connection with any sales, the Selling Shareholder
and any broker participating in such sales may be deemed to be "Underwriters"
within the meaning of the Securities Act, and any commissions received by them
and any profit on the resale of shares sold by them may be deemed to be
underwriting discounts or commissions.
CONCURRENT OFFERINGS
Concurrently with the Offering being made by this Prospectus, public
offerings of an aggregate of 12,750,000 shares of the Company's Common Stock
are being made in the United States and Canada and outside
4
<PAGE>
the United States and Canada on behalf of the Howard Heinz Endowment, Vira I.
Heinz Endowment, H. John Heinz III Revocable Trust No. 1, Heinz Family
Foundation, H. John Heinz III Descendants' Trust (No. 1), H.J. Heinz II Family
Trust and H.J. Heinz II Charitable and Family Trust, through an underwriting
syndicate co-managed by Dillon, Read & Co. Inc., Lazard Freres & Co. LLC and
Merrill Lynch, Pierce, Fenner & Smith Incorporated in the United States and
Canada and certain of their affiliates abroad at a price of $ a share.
Incident to such offerings, the U.S. Underwriters have been granted an option
to purchase up to an additional 1,912,500 shares of Common Stock from such
selling shareholders at the same price to cover over-allotments, if any.
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 this Offering.
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.
5
<PAGE>
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESEN-
TATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN THE PRO-
SPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR THE SELLING SHAREHOLD-
ER. 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 HEREOF OR THAT THE INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER
TO BUY ANY SECURITIES OTHER THAN THE REGISTERED SECURITIES TO WHICH IT RELATES.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLIC-
ITATION IS UNLAWFUL.
----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
The Company................................................................ 3
Use of Proceeds............................................................ 4
Selling Shareholder........................................................ 4
Plan of Distribution....................................................... 4
Concurrent Offerings....................................................... 4
Legal Matters.............................................................. 5
Experts.................................................................... 5
</TABLE>
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175,000 SHARES
H.J. HEINZ COMPANY
COMMON STOCK
----------------
PROSPECTUS
----------------
, 1995
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<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, all of which will be paid by the Registrant. All
amounts shown are estimates, except the SEC registration fee. The Selling
Shareholder will bear the cost of all selling commissions payable with respect
to the sale of the registered shares.
<TABLE>
<S> <C>
SEC registration fee................................................... $ 2,595
Accounting fees and expenses........................................... 10,000
Legal fees and expenses................................................ 10,000
Miscellaneous expenses................................................. 2,000
-------
Total................................................................ $24,595
=======
</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 September 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 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
II-1
<PAGE>
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> <S>
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 to the Registration Agreement
4(e) -- Registration Rights Agreement dated as of May 2, 1995 between the
Selling Shareholder 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>
- --------
* To be filed by amendment.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities 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
II-2
<PAGE>
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:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i)To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii)To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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
REGISTRATION STATEMENT TO BE FILED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF PITTSBURGH, STATE OF PENNSYLVANIA, ON AUGUST
2, 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
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON AUGUST 2, 1995.
SIGNATURE CAPACITY
/s/ Anthony J. F. O'Reilly Chairman of the Board, President and
- ------------------------------------- Chief Executive Officer (Principal
ANTHONY J. F. O'REILLY Executive Officer)
/s/ David R. Williams Senior Vice President-Finance and
- ------------------------------------- Chief Financial Officer (Principal
DAVID R. WILLIAMS Financial Officer)
/s/ Tracy E. Quinn Corporate Controller (Principal
- ------------------------------------- Accounting Officer)
TRACY E. QUINN
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 ) By /s/ Lawrence J. McCabe
Luigi Ribolla Director ) ------------------------------
Herman J. Schmidt Director ) LAWRENCE J. MCCABE
David W. Sculley Director ) Director and Attorney-in-Fact
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>
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 to the Registration Agreement
4(e) -- Registration Rights Agreement dated as of May 2,
1995 between the Selling Shareholder 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>
- --------
* To be filed by amendment.
II-5
<PAGE>
Exhibit 4(e)
REGISTRATION RIGHTS AGREEMENT
-----------------------------
REGISTRATION RIGHTS AGREEMENT, dated as of May 2, 1995 between H.J. HEINZ
COMPANY, a Pennsylvania corporation ("Heinz"), and AT&T INVESTMENT MANAGEMENT
CORP. ("Buyer").
WHEREAS, as of the date hereof, Buyer has executed a Stock Purchase
Agreement with H.J. Heinz Credit Company ("Heinz Credit") pursuant to which
Buyer purchased 175,000 shares ("the Registrable Shares") of the Common Stock,
par value $.25 per share, of Heinz ("Heinz Common Stock");
WHEREAS, the shares of Heinz Common Stock that Buyer purchased from Heinz
Credit are "restricted securities" within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), and the parties hereby intend to
provide Buyer with certain registration rights regarding the Registrable Shares
on the terms and conditions that are set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Offer Registration.
------------------
1.1 Notice of Offer to Effect Registration. Within 180 days after the
--------------------------------------
date hereof (such period of days the "Registration Period"), Heinz shall deliver
a written notice to Buyer offering to effect the registration of the Registrable
Shares, and within ten business days after receipt of such notice, Buyer shall
give written notice to Heinz accepting Heinz's offer to effect the registration
of the Registrable Shares and setting forth the number of Registrable Shares the
registration of which it wishes Heinz to effect and a description of the
proposed methods of disposition of such Registrable Shares. If Buyer fails
timely to deliver notice to Heinz or delivers notice that it does not wish that
Heinz effect the registration of the Registrable Shares, Heinz shall be deemed
to have fully satisfied all of its obligations under this Section 1.1. Upon the
receipt of Buyer's notice of acceptance, Heinz will use its best efforts to
effect the registration of the Registrable Shares in satisfaction of its
obligation under this Section 1.1. Heinz shall use its best efforts to effect
the registration, in accordance with the procedures set forth in Section 2 of
this Agreement, of all or any portion of the Registrable Shares under the
Securities Act
<PAGE>
2
and the securities or blue sky laws of any jurisdiction in the United States to
be designated by Buyer so as to permit the disposition thereof in accordance
with the methods to be described by Buyer. The registration of the Registrable
Shares pursuant to this Section is referred to herein as the "Offer
Registration." Notwithstanding the foregoing, Heinz shall not be required to
effect more than one Offer Registration with respect to the Registrable Shares.
1.2 Effective Registration. The Offer Registration shall not be deemed
----------------------
to be effective unless the registration statement relating thereto has been
declared effective by the Securities and Exchange Commission (the "Commission").
Additionally, the Offer Registration shall not be deemed to have been effected
if:
(i) the registration statement relating thereto does not remain
effective until the earlier of (A) the 90th day following the date on which
such registration statement became effective, subject to the last sentence
of Section 2.1 herein, and (B) the date on which all of the Registrable
Shares intended by Buyer to be sold pursuant to such registration statement
are sold;
(ii) after the registration statement relating thereto has become
effective, such registration statement is interfered with by any stop order,
injunction or other order or requirement of the Commission or other
governmental agency or court for any reason prior to the earlier of (A) the
90th day following the date on which such registration statement became
effective, subject to the last sentence of Section 2.1 herein, and (B) the
date on which all of the Registrable Shares intended by Buyer to be sold
pursuant to such registration statement are sold; and
(iii) the conditions to closing specified in any purchase
agreement or underwriting agreement entered into in connection with the
Offer Registration are satisfied, unless the failure to satisfy any such
condition to closing is due to some act or failure to act of Buyer.
1.3 Selection of Underwriters. If Buyer proposes to dispose of the
-------------------------
Registrable Shares in an underwritten offering, Buyer shall nominate an
investment banking firm of recognized national standing to act as the manager
that will administer the offering, subject to Heinz's consent, which shall not
be unreasonably withheld.
<PAGE>
3
2. General Provisions.
------------------
2.1 Registration Procedures. If and whenever Heinz is required
-----------------------
to effect the Offer Registration, Heinz shall:
(i) prepare and file with the Commission a registration statement with
respect to such Registrable Shares and use its best efforts to cause such
registration statement to become effective; notwithstanding the foregoing of
this clause (i) of subsection 2.1, Heinz shall not be required to file a
registration statement during any period of time (not to exceed sixty days)
when (a) Heinz is in possession of material non-public information the
disclosure of which it reasonably believes would be detrimental at such
time, and in the opinion of counsel to Heinz, such information would have to
be disclosed if a registration statement were filed at such time; or (b)
Heinz is required under the Securities Act to include audited financial
statements for any period in such registration statement and such financial
statements are not yet available for inclusion therein;
(ii) promptly prepare and file with the Commission such amendments,
post-effective amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the rules, regulations
or instructions of the registration form utilized by Heinz, the Securities
Act and the rules and regulations thereunder with respect to the disposition
of all Registrable Shares and other securities covered by such registration
statement until the earlier of the 90th day following the date on which such
registration statement becomes effective, subject to the last sentence of
this Section 2.1, or such time as Buyer shall have disposed of all such
Registrable Shares in accordance with the intended methods of disposition;
(iii) immediately notify Buyer (a) when or if the prospectus
or any prospectus supplement or post-effective amendment has been filed, and
with respect to the registration statement or any post-effective amendment,
when the same has become effective; (b) of any request by the Commission for
amendments or supplements to the registration statement or the prospectus or
for additional information; (c) of the issuance by the Commission of any
stop order suspending the effectiveness of the registration statement or the
initiation of any proceedings for that
<PAGE>
4
purpose; (d) of the receipt by Heinz of any notification with respect to the
suspension of the qualification of Registrable Shares for sale in any
jurisdiction; and (e) of the existence of any fact that makes any material
statement made in the registration statement, the prospectus or any document
incorporated therein by reference untrue or that requires the making of any
material changes in the registration statement, the prospectus or any
document incorporated therein by reference to make the statements therein
not misleading;
(iv) if any fact contemplated by clause (iii)(e) above shall exist,
promptly (a) prepare and file a supplement or post-effective amendment to
the registration statement or the related prospectus or any document
incorporated therein by reference or (b) file any required document so that,
as thereafter delivered to the purchasers of Registrable Shares, the
prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein not
misleading;
(v) if any order or suspension contemplated by clause (iii)(c) or
(iii)(d) above shall exist, use its best efforts to obtain the withdrawal of
any order suspending the effectiveness of the registration statement or any
suspension of the qualification of Registrable Shares for sale at the
earliest possible moment; and
(vi) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its securities
holders, as soon as reasonably practicable, an earnings statement that
satisfies the provisions of Section 11(a) of the Securities Act and covers
the period beginning with the first month of the first fiscal quarter after
the effective date of the registration statement and ending between twelve
months and eighteen months thereafter.
In determining the 90-day period for purposes of clauses (i) and (ii)
of Section 1.2 herein and clause (ii) of this Section 2.1, each such 90-day
period shall be extended for one day for every day for which a stop order is in
effect or has been initiated as contemplated by clause (iii)(c) above or every
day on which any fact contemplated by clause (iii)(e) above exists.
<PAGE>
5
2.2 Blue Sky Qualification. Heinz shall use its best efforts to
----------------------
cause the Registrable Shares that are the subject of the Offer Registration to
be qualified for sale under the securities or blue sky laws of such
jurisdictions in the United States as Buyer may reasonably request and shall
cause such registration or qualification to remain in effect in such
jurisdictions until the earlier of (i) the 90th day following the date on which
the related registration statement becomes effective and (ii) such time as Buyer
shall have disposed of all of the Registrable Shares in accordance with the
intended methods of disposition. Heinz shall do any and all other acts and
things that may be necessary or advisable to enable Buyer to consummate the
disposition of Registrable Shares in such jurisdictions, provided that Heinz
shall not be required (x) to qualify to do business in any state by reason of
this Section 2.2, (y) to subject itself to taxation in any such jurisdiction or
(z) to consent to general service of process in any such jurisdiction.
2.3 Copies Provided. Heinz shall furnish to Buyer the number of
---------------
copies of the applicable registration statement and of each amendment and
supplement thereto (in each case, including all exhibits), the number of copies
of the prospectus contained in such registration statement (including each
preliminary prospectus) in conformity with the requirements of the Securities
Act, such documents, if any, incorporated by reference in such registration
statement or prospectus and any other documents that Buyer may reasonably
request to facilitate the disposition of the Registrable Shares.
2.4 Requested Information. The registration rights granted to
---------------------
Buyer by this Agreement are subject to the condition that Buyer shall provide
Heinz with information about the Registrable Shares to be sold including the
plans for the proposed disposition thereof, and other information that is
necessary, in the reasonable opinion of counsel for Heinz, to enable Heinz to
include in a registration statement all material facts required to be disclosed
with respect to the offering.
2.5 Buyer's Suspension of Dispositions. Buyer hereby agrees that,
----------------------------------
upon receipt of any notice from Heinz of the happening of any event of the kind
described in clauses (c), (d) and (e) of paragraph (iii) of Section 2.1, Buyer
shall forthwith discontinue disposition of any of the Registrable Shares until
Buyer's receipt of copies of the supplemented or amended prospectus contemplated
by clause (iv) of Section 2.1 or until Buyer's receipt of notice from Heinz that
the order suspending the effectiveness of the registration statement or
suspending the qualification of
<PAGE>
6
the sale of any Registrable Shares has been withdrawn as contemplated by clause
(v) of Section 2.1.
2.6 Listing. Heinz shall cause all Registrable Shares covered by any
-------
registration statement to be listed on each securities exchange on which similar
securities issued by Heinz are listed.
2.7 Participation in Underwritten Registra tion. Buyer may not
-------------------------------------------
participate in any underwritten regis tration in connection with this Agreement
unless Buyer comp letes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of any such underwriting arrangements.
3. Registration Expenses. Heinz shall pay all expenses arising
---------------------
from or incident to the performance of, or compliance with, this Agreement,
including without limitation: (i) all registration, filing, listing and National
Association of Securities Dealers, Inc. fees; (ii) all fees and expenses
incurred in complying with securities or blue sky laws; (iii) all printing,
messenger and delivery expenses; (iv) all fees and disbursements of counsel and
accountants for Heinz and the Buyer, including the expenses of any "comfort"
letters; and (v) all of the internal expenses incurred by Heinz, including
without limitation salaries and expenses of officers and employees performing
legal and accounting duties, expenses of conducting the annual audit of Heinz's
financial statements by its independent accountants, costs in obtaining
liability insurance on behalf of Heinz, its officers and directors, and the
reasonable fees and expenses of any special experts retained in connection with
any registration statement pursuant to the terms of this Agreement, regardless
of whether such registration statement is declared effective; however, Buyer
will be responsible for underwriters discounts and selling commissions with
respect to the Registrable Shares being sold.
4. Indemnification and Contribution.
--------------------------------
4.1 Indemnification by Heinz. In connection with the Offer
------------------------
Registration effected by Heinz hereby, Heinz will indemnify and hold harmless
Buyer, its officers and directors, each underwriter of the securities
registered, any broker-dealer acting as agent of Buyer, and each person who
controls, within the meaning of Section 15 of the Securities Act, Buyer or any
underwriter against any and all losses, claims, damages, liabilities or expenses
to which they or any of them may become subject under the Securities Act or any
other statute or common law, including any amount
<PAGE>
7
paid in settlement of any commenced or threatened litigation (collectively, the
"Damages"), insofar as any such Damages arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (as amended or supplemented) or any
preliminary prospectus or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made.
Heinz shall not be bound by the indemnification provision of the preceding
sentence with respect to Buyer or any underwriter if such Damages arise solely
out of or are based upon any untrue statement or alleged untrue statement, or
any omission or alleged omission that was made in reliance upon and in
conformity with information furnished in writing to Heinz by Buyer or such
underwriter, as the case may be, for use in connection with the preparation of
the registration statement, any preliminary prospectus, any prospectus contained
in the registration statement, or any such amendment thereof or supplement
thereto. Notwithstanding the foregoing, the indemnification provided in this
Section 4.1 shall not inure to the benefit of any underwriter from whom the
person asserting any such Damages purchased the securities that are the subject
hereof (or to the benefit of any person controlling such underwriter), if the
underwriter failed to send or give a copy of the prospectus to such person at or
prior to the written confirmation of the sale of the securities to such person.
4.2 Indemnification by Buyer. In connection with the Offer
------------------------
Registration effected by Heinz hereby, Buyer agrees to indemnify and hold
harmless Heinz, each person, if any, who controls, within the meaning of Section
15 of the Securities Act, Heinz, its directors and its officers against all
Damages based upon or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus (as amended or supplemented) or any preliminary prospectus or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made, only if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to Heinz by Buyer for use in connection with the registration
statement or any post-effective amendment thereof or any preliminary prospectus
or prospectus contained in such registration statement or any such amendment
thereof or supplement thereto.
<PAGE>
8
4.3 Notice of Claim Triggering an Indemnity; Waiver. Promptly
-----------------------------------------------
after the receipt of notice of the commencement of any action against any party
entitled to indemnity under Section 4.1 or 4.2 (an "Indemnified Party") in
respect of which indemnity may be sought from any other party (an "Indemnifying
Party") on account of an indemnity agreement contained in Section 4.1 or 4.2 (an
action triggering the liability under Section 4.1 or 4.2, an "Action"), the
Indemnified Party will notify the Indemnifying Party in writing of the
commencement thereof. The failure of any Indemnified Party to notify an
Indemnifying Party of any Action shall not relieve the Indemnifying Party from
any liability in respect of such Action, unless and to the extent the failure to
provide prompt notice materially prejudices the Indemnifying Party in its
ability to defend against or settle such Action. In addition, any failure to
give such notice shall not relieve the Indemnifying Party from any other
liability that it may have to the Indemnified Party. If any Action is brought
against any Indemnified Party and the Indemnified Party notifies an Indemnifying
Party of the commencement thereof, the Indemnifying Party will be entitled to
participate therein and to assume the defense of the Action (the "Assumed
Action") with counsel satisfactory to the Indemnified Party, provided that the
Indemnifying Party promptly notifies in writing the Indemnified Party of its
election to assume the defense of the Action and acknowledges in writing that
the claim in question is one for which the Indemnifying Party is obligated to
indemnify the Indemnified Party. Upon receipt by the Indemnified Party of this
written notice and acknowledgement, the Indemnifying Party will not be liable to
the Indemnified Party for any legal or other expenses that the Indemnified Party
subsequently incurs in connection with the Assumed Action, other than reasonable
costs of investigation; however, if the Indemnified Party has a reasonable basis
to believe and does in fact believe that its interests in such Assumed Action
conflict with those of the Indemnifying Party, then the Indemnified Party may so
notify the Indemnifying Party and the Indemnifying Party will remain liable to
the Indemnified Party for all legal or other expenses that the Indemnified Party
incurs in connection with the Assumed Action. The Indemnifying Party may not
compromise or settle any Assumed Action without the prior written consent of the
Indemnified Party, unless such settlement or compromise releases and forever
holds harmless the Indemnified Party from all Damages and any culpability in
connection with or arising out of the Assumed Action. The Indemnified Party may
not compromise or settle any Action without the prior written consent of the
Indemnifying Party, which may not unreasonably withhold its consent.
<PAGE>
9
4.4 Contribution. To provide for contribution in circumstances in
------------
which the indemnification provided for in Section 4.1 or 4.2 is for any reason
held to be unavailable from the Indemnifying Party, after deducting any
contribution received by either Heinz or Buyer, including from persons who
control within the meaning of Section 15 of the Securities Act either of them,
officers of Heinz who signed the registration statement, and directors of either
of them who may also be liable for contribution, Heinz and Buyer shall each
contribute to the aggregate Damages of the nature contemplated by the
indemnification provisions set forth in Sections 4.1 and 4.2 herein (including
any investigation, legal, and other expenses incurred in connection with and any
amount paid in settlement of any action, suit, proceeding or asserted claims) to
which either Heinz or Buyer may be subject. Heinz and Buyer each shall
contribute an amount that shall reflect the relative benefit received by each
party as compared to the other party from the offering pursuant to a
registration statement, the relative fault of each party as compared to the
other party in connection with the statements or omissions that resulted in the
Damages and any other relative equitable considerations. Notwithstanding the
foregoing provisions of this Section 4.4, in accordance with Section 11(f) of
the Securities Act, no person guilty of fraudulent misrepresentation shall be
entitled to obtain contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 4.4, each person, if
any, who controls within the meaning of Section 15 of the Securities Act Heinz
or Buyer, each officer of Heinz who shall have signed the registration
statement, and each director of Heinz or Buyer shall have the same rights to
contribution as Heinz or Buyer, subject in each case to the provisions of the
preceding sentence.
5. Miscellaneous.
-------------
5.1 No Inconsistent Agreements. Heinz shall not enter into any
--------------------------
agreement with respect to its securities that is inconsistent with the rights
granted to Buyer in this Agreement.
5.2 Amendments. Except as otherwise provided herein, the
----------
provisions of this Agreement may not be amended, modified, or supplemented,
unless any of the above is approved, agreed to, or made in writing by Buyer.
5.3 Notices. Any notice or other communication required or that
-------
may be given hereunder shall be in writing and shall be deemed given (i) when
delivered personally; (ii) if sent by telecopy or like transmission, upon a
receipt of transmittal confirmation; or (iii) if sent
<PAGE>
10
by Federal Express, Express Mail, or similar overnight courier service to the
parties at the addresses set forth below, on the next business day.
Mailed notices should be addressed as follows:
(a) If to Buyer, to:
AT&T Investment Management Corp.
c/o State Street Global Advisors
Two International Place
35th Floor
Boston, MA 02110
Attn: Paul Brakke
Andrew Hone
(b) If to Heinz, to:
H.J. Heinz Company
600 Grant Street
Pittsburgh, PA 15219
Attn: Corporate Secretary
5.4 Successors and Assigns. The rights and obligations created
----------------------
by this Agreement shall inure to the benefit of and be binding upon the
successors and permitted assigns of each of the parties. The rights and
obligations of the parties hereunder may not be assigned, except by operation of
law.
5.5 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.6 Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
5.7 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly within such State.
5.8 Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal, or unenforceable in any respect for any reason, the
validity, legality, and enforceability of any such provision
<PAGE>
11
in every other respect and of the remaining provisions contained herein shall
not be in any way impaired thereby.
5.9 Entire Agreement; No Third-Party Beneficiaries. This Agreement
----------------------------------------------
is intended by the parties as a final expression of their agreement and
constitutes a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter. This Agreement is not intended to confer upon any party other than the
parties hereto any rights or remedies hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
H.J. HEINZ COMPANY
By: /s/ Paul F. Renne
------------------------------
Name: Paul F. Renne
Title: Vice President - Treasurer
AT&T INVESTMENT MANAGEMENT CORP.
By: /s/ Lawrence Unvein
------------------------------
Name: Lawrence Unvein
Title: Vice President
<PAGE>
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
H.J. Heinz Company on Form S-3 (File No. 33- ) of our reports, dated June
19, 1995, on our audits of the consolidated financial statements and financial
statement schedules of H.J. Heinz Company and Subsidiaries as of May 3, 1995
and April 27, 1994 and for each of the three years in the period ended May 3,
1995, which reports are incorporated by reference to the H.J. Heinz Company
Annual Report on Form 10-K for the year ended May 3, 1995. We also consent to
the reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Pittsburgh, Pennsylvania August 2, 1995
<PAGE>
EXHIBIT 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated April 11, 1995,
included in H.J. Heinz Company's Form 8-K/A dated May 30, 1995, and to all
references to our firm included in this registration statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
August 2, 1995
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Anthony J. F. O'Reilly, Lawrence J. McCabe
and David R. Williams, and each of them, such person's true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for such person and in his or her name, place and stead, in any and all
capacities, to sign a Registration Statement on Form S-3 and to sign any
and all amendments to said Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite and necessary to
be done, as fully to all intents and purposes as such person might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
This Power of Attorney has been signed below as of the 12th day of
July, 1995 by the following persons in the capacities indicated.
Signature Title
--------- -----
/s/ Anthony J. F. O'Reilly Chairman of the Board, President
- ------------------------------------- and Chief Executive Officer and
Anthony J. F. O'Reilly Director (Principal Executive Officer)
/s/ David R. Williams Senior Vice President - Finance and
- ------------------------------------- Chief Financial Officer and Director
David R. Williams (Principal Financial Officer)
<PAGE>
/s/ Tracy E. Quinn Corporate Controller (Principal
- ------------------------------------- Accounting Officer)
Tracy E. Quinn
/s/ William P. Snyder III Director
- -------------------------------------
William P. Snyder III
/s/ Joseph J. Bogdanovich Director
- -------------------------------------
Joseph J. Bogdanovich
/s/ Herman J. Schmidt Director
- -------------------------------------
Herman J. Schmidt
/s/ Albert Lippert Director
- -------------------------------------
Albert Lippert
/s/ Eleanor B. Sheldon Director
- -------------------------------------
Eleanor B. Sheldon
/s/ Richard M. Cyert Director
- -------------------------------------
Richard M. Cyert
/s/ Samuel C. Johnson Director
- -------------------------------------
Samuel C. Johnson
/s/ David W. Sculley Director
- -------------------------------------
David W. Sculley
/s/ Donald R. Keough Director
- -------------------------------------
Donald R. Keough
/s/ S. Donald Wiley Director
- -------------------------------------
S. Donald Wiley
<PAGE>
/s/ Lawrence J. McCabe Director
- -------------------------------------
Lawrence J. McCabe
/s/ Luigi Ribolla Director
- -------------------------------------
Luigi Ribolla
/s/ Nicholas F. Brady Director
- -------------------------------------
Nicholas F. Brady
/s/ William R. Johnson Director
- -------------------------------------
William R. Johnson
/s/ William C. Springer Director
- -------------------------------------
William C. Springer
/s/ Edith E. Holiday Director
- -------------------------------------
Edith E. Holiday
/s/ Thomas S. Foley Director
- -------------------------------------
Thomas S. Foley
