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Exhibit 10(d)(iii)
THIRD AMENDMENT
TO THIRD AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
H. J. HEINZ COMPANY, L.P.
This THIRD AMENDMENT TO THIRD AMENDED AND RESTATED LIMITED
PARTNERSHIP
AGREEMENT (this "Amendment")
of H. J. Heinz Company, L.P. (the "Partnership"),
is entered into to be
effective as of April 28, 2004 (the "Effective Date"),
by
Heinz Management L.L.C., a
Delaware limited liability company ("HM LLC"), as the
General Partner, and the
entities named on Schedule A, as the Limited Partners.
Capitalized terms used and
defined in this Amendment shall have the meanings
assigned to them in this
Amendment (including those in the recital paragraphs),
and capitalized terms used in
this Amendment and not defined herein shall have
the meanings assigned to them
in the Current LP Agreement (as defined below), in
each case, unless the context
clearly requires otherwise.
R E C I T A L S:
- - - - - - - -
WHEREAS, the Partnership is currently governed pursuant to that
certain
Third Amended and Restated
Limited Partnership Agreement made and entered into
as of December 13, 2002, as
the same has been previously amended pursuant to the
documents listed on Addendum
1 attached hereto (the "Current LP Agreement"); and
WHEREAS, in exchange for certain contributions of cash and property
to
the Partnership (as
hereinafter set forth), H. J. Heinz Company, a
Pennsylvania
corporation (the
"Contributing Limited Partner"), desires to be issued
additional Class A Interests;
and
WHEREAS, the parties hereto desire to enter into this Amendment for
the
purpose of (A) amending the
Current LP Agreement to reflect the issuance of
additional Class A Interests
to the Contributing Limited Partner and (b)
reallocating the relative
interests of the Partners in the Partnership as
hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements
herein contained and other
good and valuable consideration, the receipt and
sufficiency of which are
hereby acknowledged, the Partners, intending to be
legally bound, hereby agree
as follows:
1. ADDITIONAL CAPITAL CONTRIBUTION. In exchange for issuance to it
of
additional Class A Interests
(the "Issuance"), the Contributing Limited Partner
has made the additional
Capital Contributions to the Partnership set forth on
Schedule B attached to this
Amendment (the "Contribution"). In connection with
such Contribution, the
Current LP Agreement is hereby further amended as set
forth below:
(A) SCHEDULE B - NET EQUITY VALUE AND PERCENTAGE
INTERESTS.
From and after the Effective Date, the Schedule B attached to
the
Current LP Agreement is hereby deleted and superseded in its
entirety
and in its place and stead is substituted the Schedule B attached
to
this Amendment, and as a result thereof, from and after the
Effective
Date, the Partners shall be those persons and entities set forth
on
Schedule B to
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this Amendment and
their relative Percentage Interests in the
Partnership shall be as set forth on Schedule B to this
Amendment.
(B) APPROVALS. As required by and in accordance with
Section
3.01 of the Current LP Agreement, the General Partner
hereby
specifically approves the issuance of such additional Class A
Interests
and the General Partner hereby agrees to such Net Value.
2. REPRESENTATIONS AND WARRANTIES. Each of the Partners
hereby
represents and warrants to
the other Partners the following:
(A) It is duly organized, validly existing and in good
standing under the laws of its jurisdiction of formation with
all
requisite power and authority to enter into this Amendment and
to
conduct the business of the Partnership.
(B) The Current LP Agreement, as amended by this
Amendment,
constitutes the legal, valid and binding obligation of such
Partner
enforceable in accordance with its terms.
(C) No consents or approvals are required from any
governmental authority or other person or entity for such Partner
to
enter into this Amendment. All limited liability company, corporate
or
partnership action on the part of such Partner necessary for
the
authorization, execution and delivery of this Amendment, and
the
consummation of the transactions contemplated hereby, have been
duly
taken.
(D)
The execution and delivery of this Amendment by such
Partner, and the consummation of the transactions contemplated
hereby,
does not conflict with or contravene the provisions of
its
organizational documents or any agreement or instrument by which it
or
its properties are bound or any law, rule, regulation, order or
decree
to which it or its properties are subject.
(E) Each Partner agrees to indemnify and hold harmless
the
Partnership and each other Partner and their officers,
directors,
shareholders, partners, employees, successors and assigns from
and
against any and all loss, damage, liability or expense
(including
reasonable out of pocket costs and attorneys' fees) which they
may
incur by reason, or in connection with, any breach of the
foregoing
representations and warranties by such Partner and all
such
representations and warranties shall survive the execution and
delivery
of this Amendment and the termination and dissolution of any
Partner
and/or the Partnership (nothing herein shall constitute a waiver
or
extension of any applicable statute of limitations).
3. CONSENT. Notwithstanding any contrary right or privilege which
may
be contained in the Current
LP Agreement, all Partners consent to the Issuance
and the Contribution and
consent to and ratify this Amendment and the Current LP
Agreement (as amended by this
Amendment) and each of the Partners agrees to be
bound by all the terms,
conditions and provisions of the Current LP Agreement as
amended by this
Amendment.
2
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4. POWER OF ATTORNEY. Pursuant to Section 10.05 of the Current
LP
Agreement, the General
Partner is executing this Amendment as attorney-in-fact
for the other Limited
Partners.
5. NO DISSOLUTION/CONTINUATION OF THE PARTNERSHIP. The Partners
agree
to continue to serve as the
partners of the Partnership and each agrees to
continue the Partnership
until the Partnership is terminated without
reconstitution. Further, each
of the Partners agrees (A) the business of the
Partnership shall be deemed
to have continued and (B) the Partnership has not
been dissolved, terminated
and shall not be wound up, as a result of the
Issuance and Contribution,
notwithstanding any contrary rights and privileges
which may be contained in the
Current LP Agreement.
6. RATIFICATION AND CONFIRMATION. Except to the extent
specifically
amended by this Amendment,
the parties hereto do hereby ratify and confirm the
terms and provisions of the
Current LP Agreement, as previously amended.
7. EFFECTIVE DATE. This Amendment is effective as of the date
first
above mentioned.
8. BINDING EFFECT. Except as herein
