Exhibit 10(a)(xxix)
XXXX XXXXXX
RESTRICTED STOCK UNIT AWARD AND AGREEMENT
November 9, 2004
Dear Xxxx:
X. X. Xxxxx Company is pleased to confirm that, effective as of the above date,
you have been granted a supplemental award of Restricted Stock Units ("RSUs")
for Fiscal Year 2005 in accordance with the terms and conditions of the X.X.
Xxxxx Company Fiscal Year 2003 Stock Incentive Plan (the "Plan"). This award
replaces and is in lieu of the "Special Supplementary Incentive" made available
to you by letter agreement dated June 18, 2003 which is hereby terminated and
shall be considered null and void upon execution of this letter agreement
("Agreement"). This Award is also made under and governed by the terms and
conditions of this Agreement, which shall control in the event of a conflict
with the terms and conditions of the Plan. For purposes of this Agreement, the
"Company" shall refer to X. X. Xxxxx 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. RSU Award. You have been awarded a total of 26,364 RSUs subject to the
vesting conditions set forth in Paragraph 3 below.
2. RSU Account. RSUs entitle you to receive a corresponding number of shares
of X. X. Xxxxx Company Common Stock ("Common Stock") in the future, subject
to the conditions and restrictions set forth in this Agreement, including,
without limitation, the vesting conditions set forth in Paragraph 3 below.
Your RSUs will be credited to a separate account established and maintained
by the Company on your behalf. Until the Distribution Date (as defined
herein), your RSUs are treated as deferred compensation amounts, the value
of which is subject to change based on increases or decreases in the market
price of the Common Stock. Because the RSUs are not actual shares of Common
Stock, you cannot exercise voting rights on them until the Distribution
Date.
3. Vesting. If your business performance for Heinz North America (U.S.)
Foodservice ("HFS") achieves or exceeds the target performance goals for
FY05 Operating Income (OI) established by the Company's Chief Executive
Officer ("CEO),* and if you achieve these earnings in a "quality" manner,
as defined below, 100% of the RSUs granted hereunder will vest on June 3,
2005. If the OI target is not met in a "quality" manner, the RSUs granted
under this Agreement shall not vest and shall be forfeited.
*Acquisitions, such as TrueSoups, will be additive to this goal.
For clarification purposes:
- Your personal SSP financial goals target remains based on HFS
performance.
- Your personal goals component remains against HFS.
- The vesting of this RSU award is not dependent on the overall results
of HNA.
The "quality" of earnings determination will be at the sole discretion of
the CEO with consideration of the following criteria: (i) budgeted
marketing expenditures made, (ii) good volume with shipments to
consumption, (iii) sound fixed expense controls, (iv) improved cash
conversion cycles, and (v) no benefit from exclusion of non-recurring
items.
4. Termination of Employment, Transfer and Change in Control.
(a) Retirement, Death, Disability or Involuntary Termination without
Cause. If termination of your employment with the Company occurs prior
to the close of FY05 as a result of Retirement, Death, Disability, or
involuntary termination without Cause, the RSUs granted hereunder
shall be reduced to a number determined by multiplying the number of
RSUs granted by a fraction, the numerator of which shall be the number
of days you are employed with the Company beginning with May 1, 2003,
divided by the total number of days in FY04 and FY05, subject to the
requirements of Paragraph 5. These remaining RSUs shall remain
eligible for vesting under Paragraph 3.
(b) Transfer. If you agree to a transfer to another assignment within the
Company prior to the close of FY05, the RSUs granted hereunder shall
be reduced to a number determined by multiplying the number of RSUs
granted by a fraction, the numerator of which shall be the number of
days you perform services in your current position beginning with May
1, 2003 divided by the total number of days in FY04 and FY05, subject
to the requirements of Paragraph 5. These remaining RSUs shall remain
eligible for vesting under Paragraph 3.
(c) Change in Control. In case of a change in control (as defined in the
Plan), this RSU award shall vest if in the sole discretion of the CEO,
considering the criteria noted above, you have made good progress
toward achieving the OI Target at the time of the change in control in
a "quality" manner.
(d) Other Termination. If your employment with the Company terminates
prior to the close of FY05 for any reason other than as set forth in
subparagraphs (a) and (b) above, including without limitation any
voluntary termination of employment or an involuntary termination for
Cause, no vesting will occur and you will immediately forfeit all of
your rights in all RSUs granted hereunder.
5. Non-Solicitation/Confidential Information. In partial consideration
for the RSUs 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. Any breach by you of the provisions of
this Paragraph 5 will, at the option of the Company and in addition to
all other rights and remedies available to the Company at law, in
equity or under this Agreement, result in the immediate forfeiture of
all of your rights in any RSUs that remain unvested as of the date of
such breach.
"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. Dividends. Beginning with the date of this Agreement, an amount equal
to the dividends payable on the shares of Common Stock represented by
the RSUs will be paid directly to you as soon as practicable following
the date on which a dividend is declared by the Company. These
payments will be calculated based upon the number of RSUs credited to
your account as of the date that a dividend is declared. These
payments will be reported as income to the applicable taxing
authorities, and federal, state, local and/or foreign income and/or
employment taxes will be withheld from such payments as and to the
extent required by applicable law.
7. Distribution. All RSU distributions will be made in the form of actual
shares of Common Stock and will be distributed to you on one of the
following dates (each, a "Distribution Date"):
(a) Default Distribution Date. Shares of Common Stock representing
your RSUs will be distributed to you when the RSUs vest, unless
you make an election to defer receipt to a later date, as
provided in subparagraph (b) below.
(b) Deferred Distribution Date. You may elect to defer distribution
of your RSUs to a date subsequent to the Default Distribution
Date by providing a written election form to the Company by no
later than December 31, 2004. A copy of the election form is
attached. No deferral elections will be honored, and no
distributions will be permitted, to the extent that they would
cause taxation under Internal Revenue Code Section 409A.
(c) Executive Officer/Management Committee Member Exception. If you
are a named executive officer of the Company on the Distribution
Date (as listed in the proxy statement filed by the Company most
recent to the Distribution Date) or are a member of the Company's
Management Committee on the Distribution Date, the Distribution
Date will automatically be deferred to the close of business on
the last day of your employment with the Company.
(d) If you are a "specified employee", as defined in Internal Revenue
Code section 409A(a)(2)(B)(i) on your deferred distribution date,
your distribution will be automatically deferred until the date
that is six (6) months after your "separation from service",
regardless of your deferred distribution election.
Certificates representing the distributed shares of Common Stock will
be delivered to the firm maintaining your account as soon as
practicable after a Distribution Date occurs. Notwithstanding the
foregoing, all vested RSUs will be immediately distributed to you at
the close of business on the last day of your employment with the
Company, or as soon as practicable thereafter, if you terminate
employment with the Company for any reason including death,
disability, retirement or Change of Control of the Company.
8. Impact on Benefits. None of the RSUs being credited to your account
are deemed to be a replacement for award opportunity under the
Company's Shareholder Success Plan (SSP). No portion of the RSU award
will be included as compensation for purposes of the X.X. Xxxxx
Company Supplemental Executive Retirement Plan and the X.X. Xxxxx
Company Employees Retirement and Savings Excess Plan, regardless of
whether or not the RSUs subsequently vest.
9. Tax Withholding. On the Distribution Date, the Company will withhold a
number of shares of Common Stock that is equal, based on the Fair
Market Value of the Common Stock on the Distribution Date, to the
amount of the federal, state, local, and/or foreign income and/or
employment taxes required to be collected or withheld with respect to
the distribution.
10. Non-Transferability. Your RSUs may not be sold, transferred, pledged,
assigned or otherwise encumbered except by will or the laws of descent
and distribution. You may also designate a beneficiary(ies) in the
event that you die before a Distribution Date occurs, who shall
succeed to all your rights and obligations under this Agreement and
the Plan. A beneficiary election form is attached. If you do not
designate a beneficiary, your RSUs will pass to the person or persons
entitled to receive them under your will. If you shall have failed to
make a testamentary disposition of your RSUs in your will or shall
have died intestate, your RSUs will pass to the legal representative
or representatives of your estate.
11. 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 the Company to terminate your employment at any
time, with or without cause, and with or without notice.
12. Collection and Use of Personal Data. You consent to the collection,
use, and processing of personal data (including name, home address and
telephone number, identification number and number of RSUs held) by
the Company or a third party engaged by the Company for the purpose of
implementing, administering and managing the Plan and any other stock
option or stock incentive plans of the Company (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.
13. Future Awards. The Plan is discretionary in nature and the Company may
modify, cancel or terminate it at any time without prior notice in
accordance with the terms of the Plan. While RSUs or other awards may
be granted under the Plan on one or more occasions or even on a
regular schedule, each grant is a one time event, is not an
entitlement to an award of RSUs in the future, and does not create any
contractual or other right to receive an award of RSUs, compensation
or benefits in lieu of RSUs or any other compensation or benefits in
the future.
14. Compliance with Stock Ownership Guidelines. All RSUs granted to you
under this Agreement shall be counted as shares of Common Stock that
are owned by you for purposes of satisfying the minimum share
requirements under the
Company's Simplified Stock Ownership Guidelines ("SOG").
Notwithstanding the foregoing, you acknowledge and agree that, with
the exception of the number of shares of Common Stock withheld to
satisfy income tax withholding requirements pursuant to Paragraph 9
above, the shares of Common Stock represented by the RSUs granted to
you hereunder cannot be sold or otherwise transferred, even after the
Distribution Date, unless and until you have met SOG's minimum share
ownership requirements. The Management Development & Compensation
Committee will not approve additional RSU awards to you unless you are
in compliance with the terms of this Paragraph 14 and the SOG
requirements.
15. Confidentiality. You agree that this RSU award is HIGHLY CONFIDENTIAL.
Any disclosure by you of this award or its terms and conditions may
result in forfeiture of the award at the discretion of the CEO.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without
regard to its choice of law provisions.
THIS RSU AWARD IS SUBJECT TO YOUR ON-LINE ACCEPTANCE OF THE TERMS AND CONDITIONS
OF HEINZ AGREEMENT THROUGH THE FIDELITY WEBSITE.
X. X. XXXXX COMPANY
By: ______________________________
Xxxxxxx X. Xxxxxxx
Chairman of the Board, President and
Chief Executive Officer
Accepted: ________________________
Date: ________________________
BENEFICIARY DESIGNATION
Upon my death, the vested Restricted Stock Units earned by me under all
Restricted Stock Unit Agreements shall be paid to the beneficiary(ies) I
designate below. This designation supercedes any prior beneficiary designation I
have made regarding my Restricted Stock Unit account balance, and shall remain
in effect unless and until I file a subsequent Beneficiary Designation Form with
the Company.
Primary Beneficiary Designation
The vested Restricted Stock Units distributable 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 vested
Restricted Stock Units distributable 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
