EXHIBIT 1(b)
H.J. HEINZ COMPANY
COMMON STOCK
($0.25 Par Value)
INTERNATIONAL UNDERWRITING AGREEMENT
August __, 1995
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.
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
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mutandis as if the incorporated provisions were set forth in full herein having
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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
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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
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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
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price after the initial offering to such extent as you may determine.
2. Payment and Delivery. Payment of the purchase price for the Firm
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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
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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
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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
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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
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delivered for any reason other than as a
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/1/As used herein, "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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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
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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
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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
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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
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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
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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
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Underwriters.
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(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
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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
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Shareholder shall not be liable under this Section 11 in an amount
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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
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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
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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
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therein and participate in the defense thereof, provided that the fees and
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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
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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
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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,
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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
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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
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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
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counterparts which together shall constitute one and the same agreement among
the parties.
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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
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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:
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SCHEDULE A
Number of
Underwriters Firm Shares
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Lazard Brothers & Co. Limited . . . . . . . . . . . . .
Dillon, Read & Co. Inc. . . . . . . . . . . . . . . . .
Merrill Lynch International Limited . . . . . . . . . .
----------
Total 2,550,000
----------
16
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
ANNEX I
Material Subsidiaries
---------------------
Ore-Ida Foods, Inc.
Star-Kist Foods, Inc.
Weight Watchers International, Inc.
Weight Watchers Food Company
Portion Pac, Inc.
18