Exhibit 10(d)(iii)
THIRD AMENDMENT
TO THIRD AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
▇. ▇. ▇▇▇▇▇ COMPANY, L.P.
This THIRD AMENDMENT TO THIRD AMENDED AND RESTATED LIMITED PARTNERSHIP
AGREEMENT (this "Amendment") of ▇. ▇. ▇▇▇▇▇ 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), ▇. ▇. ▇▇▇▇▇ 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
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.
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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 otherwise provided to the contrary,
this Amendment shall be binding upon and inure to the benefit of the parties
hereto, their legal and personal representatives, successors and assigns;
provided, however, that neither party shall have any right, power and authority
to assign any rights, powers, duties or obligations hereunder.
9. AMENDMENTS. No amendment, alteration, modification or waiver of this
Amendment, or any part hereof, shall be valid or effective unless in writing and
signed by all the parties hereto.
10. APPLICABLE LAWS. The substantive laws of the State of Delaware and
the applicable federal laws of the United States shall govern the validity,
construction, enforcement and interpretation of this Amendment, and this
Amendment shall be governed by and construed in accordance with the laws of the
State of Delaware and the applicable federal laws of the United States.
11. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute but one and the same instrument which may be
sufficiently evidenced by one counterpart, and any of the parties hereto may
execute this Amendment by signing any such counterpart.
12. HEADINGS AND TITLES. The headings and titles of Articles, Sections,
Sub-sections and Paragraphs herein have been inserted as a matter of convenience
of reference only and shall not control or affect the meaning or construction of
any of the operative terms or provisions hereof or therein.
13. GENDER. Whenever the context shall so require, all words herein in
any gender shall be deemed to include the masculine, feminine, or neuter gender,
and all singular words shall include the plural, and all plural words shall
include the singular.
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14. CONSTRUCTION. In case any one or more of the provisions contained
in this Amendment shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalid, illegal or unenforceable provision
or provisions shall be fully severable and shall not affect any other provision
hereof and this Amendment shall be construed and enforced as if such invalid,
illegal or unenforceable provision had never been contained herein. Furthermore,
in lieu of each such illegal, invalid or unenforceable provision there shall be
added automatically as part of this Amendment a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
15. THIS AMENDMENT. The words "herein," "hereof," "hereunder,"
"hereby," "this Amendment" and other similar reference shall be construed to
mean and include this Amendment and all amendments thereof and supplements
thereto unless the context should clearly indicate or require otherwise.
16. NO THIRD PARTY BENEFICIARY RIGHTS. This Amendment is made solely
and specifically between and for the benefit of the parties hereto, and their
respective successors and assigns, subject to the express provisions hereof
relating to successors and assigns, and no other person, individual, corporation
or entity, whatsoever, shall have any rights, interests, or claims hereunder or
be entitled to any benefits under or on account of this Amendment as a third
party beneficiary or otherwise.
17. WAIVER. No consent or waiver, either expressed or implied, by any
party to or of any breach or default by any other party, in the performance by
such other party of the obligations thereof under this Amendment shall be deemed
or construed to be a consent or waiver to or of any other breach or default in
the performance by such other party of the same or any other obligations of such
other party under this Amendment. Failure on the part of any party to complain
or to pursue complaints with respect to any acts or failure to act of any other
party, or failure on the part of any party to declare any other party in
default, irrespective of how long such default continues, shall not constitute a
waiver by such party of the rights and remedies thereof under this Amendment or
otherwise at law or in equity.
18. EXHIBITS. All exhibits, schedules, attachments, annexed instruments
and addenda referred to herein shall be considered a part of this Amendment as
fully as if and with the same force and effect as if such exhibit, schedule,
attachment, annex or addendum had been included herein in full.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date set forth in the introductory paragraph hereof.
GENERAL PARTNER:
HEINZ MANAGEMENT L.L.C., a Delaware
limited liability corporation
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
LIMITED PARTNERS:
ROYAL AMERICAN FOODS, INC.
CMH, INC.
▇. ▇. ▇▇▇▇▇ FINANCE COMPANY
By: Heinz Management Company, attorney-in-fact pursuant
to the power of attorney granted in Section 10.05
of the Current LP Agreement
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
CONTRIBUTING LIMITED PARTNER:
▇. ▇. ▇▇▇▇▇ COMPANY
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
SCHEDULE A - LIMITED PARTNERS
The following entities are the Limited Partners of the Partnership as of the
Effective Date:
Class A Interest Holders:
------------------------
1. ▇. ▇. ▇▇▇▇▇ Company, a Pennsylvania corporation
Class B Interest Holders:
------------------------
1. ▇. ▇. ▇▇▇▇▇ Finance Company, a Delaware corporation
2. CMH, Inc., an Idaho corporation
3. Royal American Foods, Inc., a Minnesota corporation
SCHEDULE B - CAPITAL CONTRIBUTIONS AND PERCENTAGE INTERESTS
▇.▇. ▇▇▇▇▇ Company has made cash contributions on behalf of the Partnership to
certain pension plans covering employees of the Partnership and a property
contribution to the Partnership to facilitate more accurate record keeping. It
is the intention of the partners that these payments be characterized as capital
contributions to the Partnership in exchange for additional Class A Interests as
of the date of the contribution. The contributions to capital were made on the
following dates and in the following amounts:
April 2004 $10,831,197
April 2004 fixed assets of $280,486
The estimated fair market value of the Capital Contribution of each Partner and
the relative Percentage Interest in the Partnership represented by each Capital
Contribution as of the date of this Agreement is as shown below.
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Partner Capital Contribution Percentage Interests
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Heinz Management LLC 500,000 .005%
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▇. ▇. ▇▇▇▇▇ Company 6,769,813,193 61.106%
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▇. ▇. ▇▇▇▇▇ Finance Company 1,165,367,678 10.519%
----------------------------------------------------------------------------------------
CMH, Inc 3,106,010,943 28.036%
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Royal American Foods, Inc. 37,000,000 .334%
----------------------------------------------------------------------------------------
Total 11,078,691,814 100.000%
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ADDENDUM 1 - PREVIOUS AMENDMENT(S) TO THE LIMITED PARTNERSHIP AGREEMENT
The Third Amended and Restated Limited Partnership Agreement of the Partnership,
made and entered into as of December 13, 2002, has been previously amended
pursuant to the documents listed below:
1. First Amendment, effective December 31, 2002 related to the
admission of Royal American foods, Inc. as a new Class B
limited partner.
2. Second Amendment, effective April 30, 2003 related to the
issuance of additional Class A Interests to the ▇.▇. ▇▇▇▇▇
Company in exchange for a cash capital contribution.
ADDENDUM 2 - MANAGEMENT BOARD RATIFICATION
RESOLUTION OF MANAGEMENT BOARD
The undersigned, being the members of the Management Board of ▇. ▇.
▇▇▇▇▇ Company, L.P., a Delaware limited partnership ("the "Partnership"), hereby
adopt the following preamble and resolutions at a meeting of the Management
Board called and held this day:
WHEREAS, pursuant to Section 8.02 of the Third Amended and Restated
Agreement of Limited Partnership dated December 13, 2002 by and among
Heinz Management L.L.C., as General Partner, and the Limited Partners
listed in Schedule A attached to such Partnership Agreement, the
Management Board has sole power and authority to approve execution of
amendments to the Partnership Agreement; and
WHEREAS, the General Partner of the Partnership has recommended and
approved that a Third Amendment to the Partnership Agreement be
executed to reflect additional capital contributions by ▇. ▇. ▇▇▇▇▇
Company.
NOW, THEREFORE, BE IT:
RESOLVED, that the Third Amendment to the Third Amended and Restated
Limited Partnership Agreement of ▇. ▇. ▇▇▇▇▇ Company, L. P. be, and it
hereby is, approved; and
FURTHER RESOLVED, that the appropriate officers of the General Partner
(the "Officers") are authorized to take any and all actions necessary
and appropriate in order to effectuate the intent of the foregoing
resolution; and
FURTHER RESOLVED, that all actions taken by the Officers prior to the
adoption of these resolutions in connection with the transaction
described above be, and they hereby are, approved, ratified and
confirmed.
IN WITNESS WHEREOF, the undersigned have executed these resolutions this 22nd
day of April, 2005.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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