Exhibit 10(a)(xxxi)
PERFORMANCE UNIT AWARD AGREEMENT
[DATE]
Dear ____________________:
H. J. Heinz Company is pleased to confirm that, effective as of __________, you
have been granted a Performance Unit Award in accordance with the terms and
conditions of the H. J. Heinz Company Fiscal Year 2003 Stock Incentive Plan (the
"Plan"). This Performance Unit Award is also made under and pursuant to this
letter agreement ("Agreement"), the terms and conditions of which shall govern
and control in the event of a conflict with the terms and conditions of the
Plan. For purposes of this Agreement, the "Company" shall refer to H. J. Heinz
Company and its Subsidiaries. Unless otherwise defined in this Agreement, all
capitalized terms used in this Agreement shall have the same defined meanings as
in the Plan.
1. Performance Unit Award. The annual unadjusted target value of the
Performance Units awarded to you under this Agreement is $____________. The
total target award opportunity for the Performance Period is equal to twice
this amount, subject to prorating pursuant to Paragraph 3 below (the "Award
Opportunity"). Your actual Award will be paid as a percentage of the Award
Opportunity, as determined pursuant to Paragraph 2 below (the "Payout
Percentage"). The "Performance Period" means the two-year period spanning
the Company's Fiscal Year __ and Fiscal Year __.
2. Performance Goals. The Payout Percentage will be determined based upon the
level of success the Company achieves during the Performance Period
relative to the Performance Goals established by the Management Development
and Compensation Committee of the Board of Directors as set forth below.
[PERFORMANCE GOALS]
3. Payment of Performance Award. Your Performance Unit Award, if earned, will
be paid promptly after the end of the Performance Period, subject to
Paragraphs 4 and 5 below. If your employment with the Company began after
the commencement of the Performance Period, the actual amount of your Award
will be pro-rated based upon the number of months that you were employed by
the Company (in an eligible position) during the Performance Period. The
Performance Unit Award will be paid in cash; provided, however, that in the
event that you are an executive covered by the Company's Stock Ownership
Guidelines and you have not yet attained the requisite level of stock
ownership, your Performance Award will be paid in the form of shares of
Heinz Common Stock, which you would be expected to thereafter retain in
accordance with the Stock Ownership Guidelines. Notwithstanding the
foregoing or any other provision or term of this Agreement to the contrary,
you must have been employed by the Company in an eligible position for a
minimum of twelve (12) months during the Performance Period in order to be
eligible to receive payment of a Performance Unit Award hereunder.
4. Termination of Employment. The termination of your employment with the
Company will have the following effect on your Performance Unit Award:
(a) Termination of Employment During First Year of Performance Period. In
the event that your employment with the Company ends during the first
year of the Performance Period for any reason, including without
limitation as a result of death, disability, retirement, voluntary
termination or involuntary termination with or without Cause, your
Performance Unit Award will automatically be forfeited.
(b) Termination of Employment During Second Year of Performance Period.
(i) Death, Disability or Retirement. In the event that your
employment with the Company ends during the second year of
the Performance Period as the result of your Death,
Retirement, or Disability, you will receive a Performance
Unit Award at the end of the Performance Period determined
in accordance with Paragraph 2 above, prorated through the
date your employment ends or the date of your disability, as
applicable.
(ii) Involuntary Termination without Cause. In the event your
employment with the Company ends during the second year of
the Performance Period as the result of an Involuntary
Termination without Cause, the MD&CC may, in its sole
discretion, authorize the payment of a Performance Unit
Award at the end of the Performance Period, determined in
accordance with Paragraph 2 above, prorated through your
last day of employment with the Company.
(iii) Other Termination. In the event your employment with the
Company ends during the second year of the Performance
Period as the result of any reason other than as set forth
in subparagraphs 4(b)(i) and 4(b)(ii) above, including
without limitation any voluntary termination of employment
or an involuntary termination for Cause, your Performance
Unit Award will automatically be forfeited.
(c) Change in Control. In the event of a Change in Control (as defined in
IRS Notice 2005-1, Section IV, Q&A-12) during the Performance Period,
payment of this Performance Award will be immediately accelerated. The
amount of the Performance Award will be prorated as of the date the
Change in Control become effective, and shall be determined based upon
verifiable Company performance as of such date.
5. Non-Solicitation/Confidential Information. In partial consideration for the
Performance Unit Award granted to you hereunder, you agree that you shall
not, during the term of your employment by the Company and for 12 months
after termination of your employment, regardless of the reason for the
termination, either directly or indirectly, solicit, take away or attempt
to solicit or take away any other employee of the Company, either for your
own purpose or for any other person or entity. You further agree that you
shall not, during the term of your employment by the Company or at any time
thereafter, use or disclose the Confidential Information (as defined below)
except as directed by, and in furtherance of the business purposes of, the
Company. You acknowledge that the breach or threatened breach of this
Paragraph 5 will result in irreparable injury to the Company for which
there is no adequate remedy at law because, among other things, it is not
readily susceptible of proof as to the monetary damages that would result
to the Company. You consent to the issuance of any restraining order or
preliminary restraining order or injunction with respect to any conduct by
you that is directly or indirectly a breach or threatened breach of this
Paragraph 5.
"Confidential Information" as used herein shall mean technical or business
information not readily available to the public or generally known in the
trade, including but not limited to inventions; ideas; improvements;
discoveries; developments; formulations; ingredients; recipes;
specifications; designs; standards; financial data; sales, marketing and
distribution plans, techniques and strategies; customer and supplier
information; equipment; mechanisms; manufacturing plans; processing and
packaging techniques; trade secrets and other confidential information,
knowledge, data and know-how of the Company, whether or not they originated
with you, or information which the Company received from third parties
under an obligation of confidentiality.
6. Impact on Benefits. The Performance Unit Award, if earned, will not be
eligible for contributions under any of the Company's retirement and other
benefit plans, including but not limited to the Company's Supplemental
Executive Retirement Plan, the Savings Plan or the Company Match plan.
7. Tax Withholding. When your Performance Unit Award is paid, the Company will
withhold the amount of money (or, if applicable, the number of shares of
Common Stock that is equal, based on the Fair Market Value of the Common
Stock on the payment date) to the amount of the federal, state, local,
and/or foreign income and/or employment taxes required to be collected or
withheld with respect to the payment.
8. Non-Transferability. Your Performance Unit Award may not be sold,
transferred, pledged, assigned or otherwise encumbered except by will or
the laws of descent and distribution. You may also designate a
beneficiary(ies) in the event that you die before the Performance Unit
Award is paid, who shall succeed to all your rights and obligations under
this Agreement and the Plan, subject to Paragraph 4 above. A beneficiary
election form is attached.
9. Employment At-Will. You acknowledge and agree that nothing in this
Agreement or the Plan shall confer upon you any right with respect to
future awards or continuation of your employment, nor shall it constitute
an employment agreement or interfere in any way with your right or the
right of Company to terminate your employment at any time, with or without
cause, and with or without notice.
10. Collection and Use of Personal Data. You consent to the collection, use,
and processing of personal data (including name, home address and telephone
number, identification number) by the Company or a third party engaged by
the Company for the purpose of implementing, administering and managing the
Plan and any other stock option or stock or long-term incentive plans of
the Company (the "Plans"). You further consent to the release of personal
data to such a third party administrator, which, at the option of the
Company, may be designated as the exclusive broker in connection with the
Plans. You hereby waive any data privacy rights with respect to such data
to the extent that receipt, possession, use, retention, or transfer of the
data is authorized hereunder.
11. Future Awards. The Plan is discretionary in nature and the Company may
modify, cancel or terminate it at any time without prior notice in
accordance with the terms of the Plan. While Performance Unit Awards or
other awards may be granted under the Plan on one or more occasions or even
on a regular schedule, each grant is a one time event, is not an
entitlement to an award of cash or stock in the future, and does not create
any contractual or other right to receive a Performance Award or other
compensation or benefits in the future.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without
regard to its choice of law provisions.
THIS PERFORMANCE UNIT AWARD IS SUBJECT TO YOUR SIGNING BOTH COPIES OF THIS
AGREEMENT AND RETURNING ONE SIGNED AND DATED COPY TO THE COMPANY.
H. J. HEINZ COMPANY
By: ______________________________
Accepted: ______________________________
Date: ______________________________
BENEFICIARY DESIGNATION
Upon my death, the Performance Award earned by me under all Performance Award
Agreements shall be paid to the beneficiary(ies) I designate below. This
designation supercedes any prior beneficiary designation I have made regarding
my Performance Awards, and shall remain in effect unless and until I file a
subsequent Beneficiary Designation Form with the Company.
Primary Beneficiary Designation
All Performance Awards earned by and payable to me shall be paid, in equal
portions unless otherwise indicated, to the following Primary Beneficiary(ies)
then surviving:
Name Relationship Date of Birth Social Security Number
- ---- ------------ ------------- ----------------------
- -------------------- ------------ ------------- ----------------------
- -------------------- ------------ ------------- ----------------------
- -------------------- ------------ ------------- ----------------------
- -------------------- ------------ ------------- ----------------------
Contingent Beneficiary Designation
If none of the above-named Primary Beneficiaries survives me, the Performance
Awards earned by and payable to me shall be paid, in equal portions unless
otherwise indicated, to the following Contingent Beneficiary(ies) then
surviving:
Name Relationship Date of Birth Social Security Number
- ---- ------------ ------------- ----------------------
- -------------------- ------------ ------------- ----------------------
- -------------------- ------------ ------------- ----------------------
- -------------------- ------------ ------------- ----------------------
- -------------------- ------------ ------------- ----------------------
- ----------------------------------- -----------------------
Signature Date