Delaware | 1-9494 | 13-3228013 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) | ||
200 Fifth Avenue, New York, New York | 10010 | |||
(Address of principal executive offices) | (Zip Code) |
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.05. | Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision to the Code of Ethics. |
(d) | Exhibits |
10.18 | Tiffany and Company Amended and Restated Executive Deferral Plan originally made effective October 1, 1989, as amended and restated effective March 17, 2016. |
10.21 | 1994 Tiffany and Company Supplemental Retirement Income Plan, Amended and Restated as of March 17, 2016. |
10.25 | 2004 Tiffany and Company Un-funded Retirement Income Plan to Recognize Compensation in Excess of Internal Revenue Code Limits, Amended and Restated as of March 17, 2016. |
10.29 | Registrant’s 2014 Employee Incentive Plan, amended and restated as of March 16, 2016. |
10.29e | Form of Fiscal 2015 Cash Incentive Award Agreement for certain executive officers as adopted on March 16, 2016 under Registrant’s 2014 Employee Incentive Plan. |
10.29f | Form of Non-Competition and Confidentiality Covenants for use in connection with Performance-Based Restricted Stock Unit Grants to Registrant’s Executive Officers, and Time-Vesting Restricted Unit Awards and Certain Non-Qualified Retirement Contributions made to other officers of Registrant’s affiliated companies pursuant to Registrant’s 2014 Employee Incentive Plan and pursuant to the Tiffany and Company Amended and Restated Executive Deferral Plan. |
10.29g | Terms of Stock Option Award (Transferable Non-Qualified Option) under Registrant’s 2014 Employee Incentive Plan, as revised March 16, 2016. |
10.29h | Terms of Performance-Based Restricted Stock Unit Grants to Executive Officers, effective March 16, 2016, under Registrant’s 2014 Employee Incentive Plan. |
10.29i | Terms of Cliff-Vesting Restricted Stock Grant (Non-Transferable) under Registrant’s 2014 Employee Incentive Plan, as revised March 16, 2016. |
10.29j | Terms of Tranche-Vesting Restricted Stock Grant (Non-Transferable) under Registrant’s 2014 Employee Incentive Plan, as revised March 16, 2016. |
10.29k | Terms of Time-Vesting Restricted Stock Grant (Non-Transferable) under Registrant’s 2014 Employee Incentive Plan, as revised March 16, 2016. |
10.34 | Form of 2016 Retention Agreement with Registrant and Tiffany and Company. |
14.1 | Code of Business and Ethical Conduct. |
TIFFANY & CO. | ||
(Registrant) | ||
By: /s/ Leigh M. Harlan | ||
Leigh M. Harlan | ||
Senior Vice President, Secretary | ||
and General Counsel | ||
Date: March 22, 2016 |
Exhibit No. | Description |
10.18 | Tiffany and Company Amended and Restated Executive Deferral Plan originally made effective October 1, 1989, as amended and restated effective March 17, 2016. |
10.21 | 1994 Tiffany and Company Supplemental Retirement Income Plan, Amended and Restated as of March 17, 2016. |
10.25 | 2004 Tiffany and Company Un-funded Retirement Income Plan to Recognize Compensation in Excess of Internal Revenue Code Limits, Amended and Restated as of March 17, 2016. |
10.29 | Registrant’s 2014 Employee Incentive Plan, amended and restated as of March 16, 2016. |
10.29e | Form of Fiscal 2015 Cash Incentive Award Agreement for certain executive officers as adopted on March 16, 2016 under Registrant’s 2014 Employee Incentive Plan. |
10.29f | Form of Non-Competition and Confidentiality Covenants for use in connection with Performance-Based Restricted Stock Unit Grants to Registrant’s Executive Officers, and Time-Vesting Restricted Unit Awards and Certain Non-Qualified Retirement Contributions made to other officers of Registrant’s affiliated companies pursuant to Registrant’s 2014 Employee Incentive Plan and pursuant to the Tiffany and Company Amended and Restated Executive Deferral Plan. |
10.29g | Terms of Stock Option Award (Transferable Non-Qualified Option) under Registrant’s 2014 Employee Incentive Plan, as revised March 16, 2016. |
10.29h | Terms of Performance-Based Restricted Stock Unit Grants to Executive Officers, effective March 16, 2016, under Registrant’s 2014 Employee Incentive Plan. |
10.29i | Terms of Cliff-Vesting Restricted Stock Grant (Non-Transferable) under Registrant’s 2014 Employee Incentive Plan, as revised March 16, 2016. |
10.29j | Terms of Tranche-Vesting Restricted Stock Grant (Non-Transferable) under Registrant’s 2014 Employee Incentive Plan, as revised March 16, 2016. |
10.29k | Terms of Time-Vesting Restricted Stock Grant (Non-Transferable) under Registrant’s 2014 Employee Incentive Plan, as revised March 16, 2016. |
10.34 | Form of 2016 Retention Agreement with Registrant and Tiffany and Company. |
14.1 | Code of Business and Ethical Conduct. |
Tiffany and Company Executive Deferral Plan Amended and Restated as of March 17, 2016 | 2 |
Tiffany and Company Executive Deferral Plan Amended and Restated as of March 17, 2016 | 3 |
Tiffany and Company Executive Deferral Plan Amended and Restated as of March 17, 2016 | 4 |
(i) | Participant’s conviction or plea of no contest to a felony involving financial impropriety or a felony which would tend to subject the Employer or any of its Affiliates to public criticism or materially interfere with Participant’s continued service to the Employer or its Affiliate; |
(ii) | Participant’s willful and unauthorized disclosure of material “Confidential Information” (as that term is defined in the Non-Competition and Confidentiality Covenants) which disclosure is in breach of such Covenants and actually results in substantive harm to the Employer’s or its Affiliate’s business or puts such business at an actual competitive disadvantage; |
(iii) | Participant’s willful failure or refusal to perform substantially all such proper and achievable directives issued by Participant’s superior (other than: (A) any such failure resulting from Participant’s incapacity due to physical or mental illness, or (B) any such refusal made by Participant in good faith because Participant believes such directives to be illegal, unethical or immoral) after a written demand for substantial performance is delivered to Participant on behalf of Employer, which demand specifically identifies the manner in which Participant has not substantially performed Participant’s duties, and which performance is not substantially corrected by Participant within ten (10) days of receipt of such demand; |
(iv) | Participant’s commission of any willful act which is intended by Participant to result in his personal enrichment at the expense of the Employer or any of its Affiliates, or which could reasonably be expected by him to materially injure the reputation, business or business relationships of the Employer or any of its Affiliates; |
(v) | A theft, fraud or embezzlement perpetrated by Participant upon Employer or any of its Affiliates. |
Tiffany and Company Executive Deferral Plan Amended and Restated as of March 17, 2016 | 5 |
Tiffany and Company Executive Deferral Plan Amended and Restated as of March 17, 2016 | 6 |
Tiffany and Company Executive Deferral Plan Amended and Restated as of March 17, 2016 | 7 |
Tiffany and Company Executive Deferral Plan Amended and Restated as of March 17, 2016 | 8 |
Tiffany and Company Executive Deferral Plan Amended and Restated as of March 17, 2016 | 9 |
Tiffany and Company Executive Deferral Plan Amended and Restated as of March 17, 2016 | 10 |
(a) | with respect to Participant who is not an Independent Director, a termination of services provided by the Participant to the Employer, whether voluntarily or involuntarily, as determined by the Committee in accordance with Section 409A of the Code and Section 1.409A-1(h) of the Treasury Regulations. In determining whether a Participant who is not an Independent Director has experienced a Termination of Service, the following provisions shall apply: |
(i) | Termination of Service shall occur when the Participant has experienced a termination of employment with the Employer. A Participant shall be considered to have experienced a termination of employment for this purpose when the facts and circumstances indicate that the Participant and his or her Employer reasonably anticipate that either (A) no further services will be performed by the Participant for the Employer after the applicable date, or (B) that the level of bona fide services the Participant will perform for the Employer after such date (whether as an employee or as an independent contractor) will permanently decrease to no more than 20% of the average level of bona fide services performed by the Participant (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services to the Employer if the Participant has been providing services to the Employer less than 36 months). |
(ii) | If the Participant is on military leave, sick leave, or other bona fide leave of absence, other than a Disability leave, the employment relationship |
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(b) | With respect to a Participant who is an Independent Director, a “Termination of Service” shall occur when such Participant ceases to be a Director, provided that Director and Employer do not anticipate resumption of services as a Director or Employee. |
(c) | With respect to a Participant who serves simultaneously as a Director and an employee of Employer, a Termination of Service shall occur as described in paragraph (a) above for all contributions prior to such Termination of Service. Should such Participant continue as a Director following a Termination of Service pursuant to section (a) above, and continue executive deferral contributions under the Plan as an Independent Director, a Termination of Service shall occur pursuant to section (b) above for the purposes of such executive deferral contributions. |
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2.1 | Commencement of Participation. Each Eligible Employee who is an Eligible Employee at any time during the Enrollment Period for any Plan Year shall be eligible to become a Participant in the Plan as of the first day of such Plan Year. Notwithstanding the foregoing, but subject to the limitation expressed in Subsection 3.2 F below, each employee or Director who first becomes an Eligible Employee throughout the course of the Plan Year shall be eligible to become a Participant with respect to said Plan Year as of the first day of the month that is at least thirty (30) days after he is designated as an Eligible Employee provided that he shall have made a written election to become a Participant within thirty (30) days of such designation and provided further that such election shall not be effective with respect to Compensation earned for services performed prior to the date of such election. Moreover, effective on and after February 1, 2010, if an Eligible Employee who is also a Select Management Employee is entitled to a DCRB Contribution under the DCRB Plan, and such DCRB Contribution is curtailed by reason of the limitations under Sections 401(a)(17) or 415 of the Code, the Eligible Employee shall receive an Excess DCRB Contribution under this Plan effective as of the date that such DCRB Contribution is made under the DCRB Plan regardless of whether the Eligible Employee has elected to participate in this Plan for any other purpose. |
2.2 | Procedure For and Effect of Admission. Each individual who becomes eligible for admission to participate in this Plan shall complete such forms and provide such data |
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2.3 | Cessation of Participation. Except as provided in Section 3.4C, a Participant shall cease to be a Participant when he incurs a Termination of Service, or, for purposes of Excess DCRB Contributions, on the date on which he ceases to be a participant under the DCRB Plan. Such persons, and all active Participants on the termination of the Plan, shall be deemed “former active Participants”. Notwithstanding the foregoing, a former active Participant will be deemed a Participant, for all purposes of this Plan except with respect to contributions as described in Article III, as long as such former active Participant retains a benefit pursuant to the terms of Article VI. |
3.1 | Executive Deferral Contribution. For each Plan Year, each Eligible Employee may, by timely filing a Deferral Agreement with the Administrator, authorize the Employer to reduce his Base Compensation, his Bonus Compensation, his Directors Compensation or any combination of the foregoing, by fixed percentages, and to have corresponding fixed dollar amounts credited to his Deferred Benefit Accounts in accordance with Section 4.2. Credit to Deferred Benefit Accounts shall be made in equal installments for each pay period in respect of Base Compensation reductions and in a lump sum for each payment in respect of Bonus Compensation and Directors Compensation reductions. Subject to the rules set forth in Section 3.2 below, each Eligible Employee shall file a Deferral Agreement with the Administrator or his appointee during the applicable Enrollment Period for each Plan Year. |
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3.2 | Rules Governing Executive Deferral Contributions. |
A. | Throughout any one Plan Year, a Participant may defer all or any portion of his Compensation, except that a Participant may not defer: less than $2,000 in any Plan Year ending on or before December 31, 2002 or less than $1,000 in any other Plan Year (except Plan Years in which the Participant elects not to defer any portion of his Compensation); more than 50% of Base Compensation in any Plan Year; or more than 90% of Bonus Compensation payable in any Plan Year ending after December 31, 2002; or, for a person who becomes an Eligible Employee during the course of a Plan Year, any portion of Base Compensation or Bonus Compensation applicable to services performed prior to the Eligible Employee’s date of election in that Plan Year. |
B. | The amount of Compensation that a Participant elects to defer shall be credited to the Participant's Deferred Benefit Accounts during each Plan Year on or about that date on which the Participant would have, but for his deferral election, have been paid such Compensation. |
C. | An election to defer Compensation pursuant to this Plan is irrevocable and shall continue until the earlier of: (i) the Participant's Termination of Service, or (ii) the end of the Plan Year for which the deferral is effective. |
D. | In respect of Bonus Compensation, an election to defer must be made no later than six months before the end of the fiscal year with respect to which such Bonus Compensation relates. |
E. | Except as expressly provided in subsection D. above, each Eligible Employee shall file a Deferral Agreement with the Administrator during the applicable Enrollment Period for the Plan Year in question. |
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F. | No person who becomes an Eligible Employee during the course of Employer's Fiscal Year may file a Deferral Agreement with respect to Bonus Compensation for that Fiscal Year except as expressly provided in subsection D. above. |
3.3 | Excess DCRB Contribution. Effective on and after February 1, 2010, if an Eligible Employee who is also a Select Management Employee is entitled to a DCRB Contribution under the DCRB Plan, and such DCRB Contribution is curtailed by reason of the limitations under Sections 401(a)(17) or 415 of the Code, the Eligible Employee shall have an Excess DCRB Contribution credited to his Deferred Benefit Accounts in accordance with Section 4.2 effective as of the date such DCRB Contribution is made under the DCRB Plan, regardless of whether the Eligible Employee has elected to participate in this Plan for any other purpose. |
3.4 | Rules Governing Excess DCRB Contributions. |
A. | The amount of an Excess DCRB Contribution shall equal the excess of (i) the amount of the DCRB Contribution that would have been made under the terms of the DCRB Plan without giving effect to the limit on compensation imposed by Section 401(a)(17) of the Code or the limit on annual additions imposed by Section 415 of the Code, over (ii) the actual amount of the DCRB Contribution made on behalf of such Eligible Employee. |
B. | No Deferral Agreement shall be required for an Excess DCRB Contribution. |
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C. | If a Participant is eligible to continue receiving DCRB Contributions under the DCRB Plan while in receipt of payments under an employer-sponsored sickness or disability income plan or program, such Participant shall continue to be eligible to have allocations of Excess DCRB Contributions credited to his Deferred Benefit Accounts to the extent the requirements of Section 3.3 and this Section 3.4 are otherwise met. Such Excess DCRB Contributions may continue notwithstanding the Participant’s Termination of Service due to Disability. |
4.1 | Establishment of Accounts. The following Deferred Benefit Accounts shall be established with respect to each Participant: |
A. | Retirement Account, |
B. | Scheduled In-Service Withdrawal Accounts. |
4.2 | Deferred Benefit Allocation. Each Eligible Employee shall submit to the Administrator, before the close of the Enrollment Period for each Plan Year, a written statement specifying the Eligible Employee's allocation of anticipated contributions with respect to his Deferred Benefit Accounts. Notwithstanding the foregoing, an Excess DCRB Contribution shall be allocated only to the Eligible Employee’s Retirement Account. |
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4.3 | Suballocation Within the Deferred Benefit Accounts. |
A. | Retirement Subaccounts. In the event a Participant shall allocate a portion of his anticipated contributions to his Retirement Account, he may, during each applicable Enrollment Period, direct that portion of his anticipated contributions to (i) a lump sum subaccount or to (ii) one of four installment subaccounts. |
Tiffany and Company Executive Deferral Plan Amended and Restated as of March 17, 2016 | 18 |
Tiffany and Company Executive Deferral Plan Amended and Restated as of March 17, 2016 | 19 |
B. | Education Subaccounts. In the event a Participant shall allocate a portion of his anticipated contributions to his Education Account, the Participant may further allocate amongst subaccounts on behalf of Eligible Students. Said allocation shall be made in writing prior to the beginning of the Plan Year on Participant's Deferral Agreement, or such other forms as are required by the Administrator. In the absence of such suballocation, all contributions to the Participant's Education Account shall be equally allocated among the Participant's Education subaccounts. A Participant's election pursuant to Section 4.5 shall apply uniformly to each subaccount. A Participant, in any one Plan Year, may not allocate less than $1,000 (except in Plan Years in which the Participant elects not to defer any portion of his Compensation) to any one Education subaccount. |
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C. | Fixed Period Benefit Subaccounts. In the event a Participant shall allocate a portion of his anticipated contributions to his Fixed Period Benefit Account, the Participant may further allocate amongst subaccounts differentiated by Benefit Distribution Dates. Said allocation shall be made in writing prior to the beginning of the Plan Year on Participant's Deferral Agreement, or such other forms as are required by the Administrator, provided that (i) each Participant shall have a one-time option in respect of each of his Benefit Distribution Dates to change such Benefit Distribution Date to a date at least five years subsequent to such original Benefit Distribution Date and (ii) such option is exercised, if at all, at least one year prior to the original Benefit Distribution Date by written notice to the Administrator. In the absence of such suballocation, all contributions to the Participant's Fixed Period Benefit Account shall be equally allocated among Participant's subaccounts. A Participant's election pursuant to Section 4.5 shall apply uniformly to each subaccount. A Participant, in any one Plan Year, may not allocate less than $1,000 (except in Plan Years in which the Participant elects not to defer any portion of his Compensation) to any one Fixed Period subaccount. For elections made prior to November of 2002, a Participant shall not elect a Benefit Distribution Date with respect to the Fixed Period Benefit Account which occurs prior to twenty-four (24) months from the date on which the first contribution to such subaccount is first credited except as provided in Section 4.1 above. For elections made in or after November of 2002, a Participant shall not elect a Benefit Distribution Date with respect to a Scheduled In-Service Withdrawal Account which occurs prior to twenty-four (24) months from the last day in the Plan Year in which such election is made. |
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4.4 | Irrevocable Benefit Allocation. Once an Eligible Employee has allocated anticipated contributions under the Plan and the Plan Year has begun, he may not modify, alter, amend or revoke said allocations. Notwithstanding, a Participant may, prior to the commencement of a new Plan Year, elect to modify, alter, amend or revoke his future allocations to his Deferred Benefit Accounts (other than allocations of Excess DCRB Contributions) to the extent the Administrator shall provide, effective the first day of such new Plan Year. |
4.5 | Directed Valuation of Deferred Benefit Accounts. As provided herein, a Participant may direct that his Deferred Benefit Accounts be valued, in accordance with Section 4.7, as if the account was invested in one or more of the Investment Funds listed in Schedule 4.5 attached. The Committee may, from time to time, add additional Investment Funds to Schedule 4.5. A Participant shall submit to the Plan Administrator in writing his investment selection for evaluation purposes. The Participant may select one or more investment funds in multiples of 1%. A Participant may make a separate selection with respect to each Deferred Benefit Account. Investment Fund elections may be made daily. The Committee may designate one or more Investment Funds to be used to value a Participant’s Deferred Benefit Accounts in the event the Participant fails to make an investment selection. |
4.6 | Administration of Investments. The investment gain or loss with respect to contributions made to the Deferred Benefit Accounts on behalf of a Participant shall continue to be determined in the manner selected by the Participant, pursuant to Section 4.5, until a new designation is filed with the Plan Administrator. If any Participant fails to file a designation, he shall be deemed to have designated the first Investment Fund listed in Schedule 4.5 attached. A designation filed by a Participant changing his Investment Funds shall apply to future contributions and/or amounts already accumulated in his Deferred Benefit Accounts. A Participant may change his investment selection at any time throughout the course of each Plan Year. Notwithstanding the foregoing sentence, the Administrator retains the discretion to |
Tiffany and Company Executive Deferral Plan Amended and Restated as of March 17, 2016 | 22 |
4.7 | Valuation of Deferred Benefit Accounts. The Deferred Benefit Accounts of each Participant shall be valued, on any date prior to complete distribution of all benefits due Participant under this Plan, based upon the performance of the Investment Fund(s) selected by the Participant. Such valuation shall reflect the net asset value expressed per share of the designated Investment Fund(s). The fair market value of an Investment Fund shall be determined by the Administrator. It shall represent the fair market value of all securities or other property held for the respective fund, plus cash and accrued earnings, less accrued expenses and proper charges against the fund. Each Deferred Benefit Account shall be valued separately. A valuation summary shall be prepared on each Determination Date. |
4.8 | Investment Obligation of the Employer. Benefits are payable as they become due irrespective of any actual investments the Employer may make to meet its obligations. Neither the Employer, nor any trustee (in the event the Employer elects to use a grantor trust to accumulate funds) shall be obligated to purchase or maintain any asset, and any reference to investments or Investment Funds is solely for the purpose of computing the value of benefits. To the extent a Participant or any person acquires a right to receive payments from the Employer under this Plan, such right shall be no greater than the right of any unsecured creditor of the Employer. |
4.9 | Change of Funds. In the event that any of the Investment Funds designated in Schedule 4.5 attached underperforms in comparison to relevant benchmarks, materially changes its investment objectives, adopts a plan of liquidation, ceases to report its net asset values or otherwise ceases to exist, the Employer may amend this Plan by designating new or additional funds for the purposes of Section 4.7 and each Participant shall redirect the valuation of his or her Deferred Benefit Accounts effective with the date of such amendment. |
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5.1 | A. Vesting Schedule - Executive Deferral Contributions. A Participant shall have a fully Vested interest with respect to Executive Deferral Contributions and Investment Fund performance credited to such contributions in his Deferred Benefit Accounts, in all instances and at all times. |
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A. | If a Participant incurs a Termination of Service for any reason, the Employer shall pay to the Participant, or to the Participant’s Beneficiary if applicable, a benefit equal to the value of Participant’s Deferred Benefit Accounts, determined pursuant to Section 4.7 and Section 5.1 on such distribution dates as may be applicable under this Article VI. |
B. | Subject to Section 6.1.F below, with the exception of funds allocated to the Participant’s Retirement Account, if the Participant incurs a Termination of Service for any reason, the benefit hereunder, including funds allocated to the Participant’s Scheduled In-Service Withdrawal Accounts, shall be paid to the Participant or the Participant’s Beneficiary, as applicable, as a lump sum within ninety (90) days of the date of such Termination of Service, provided that Participant has no discretion or control in determining the Plan Year in which such lump sum amount is paid. |
C. | Subject to Section 6.1.F below, with respect to funds allocated to the Participant’s Retirement Account, if the Participant incurs a Termination of Service for any reason other than his Retirement or Disability, the benefit hereunder allocated to such Retirement Account, shall be paid to the Participant or the Participant’s Beneficiary, as applicable, as a lump sum within ninety (90) days of the date of such Termination of Service. |
D. | Subject to Section 6.1.F below, with respect to funds allocated to the Participant’s Retirement Account, if the Participant incurs a Termination of Service by reason of his Retirement, the benefit hereunder allocated to such |
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E. | With respect to funds allocated to the Participant’s Retirement Account, if the Participant incurs a Termination of Service by reason of his Disability, the Participant shall remain as a Participant in the Plan but shall be ineligible for further contributions to his Deferred Benefit Accounts except as otherwise provided in Section 3.4C. In that circumstance, funds allocated to the Participant’s Retirement Account shall be paid to him commencing on his 65th birthday in the form he elected pursuant to Section 4.3A. |
F. | Notwithstanding anything stated in this Plan to the contrary, if a Participant who is a Specified Employee incurs a Termination of Service, other than by reason of such Participant’s death or Disability, no distribution of, payment from or benefit in lieu of Participant’s Deferred Benefit Accounts other than Pre-2005 Balances shall be made until the expiration of a period of six months following such Separation of Service, and any payments otherwise scheduled under this Plan during such six-month period shall be deemed deferred until the earlier of the expiration of such six-month period or such Participant’s death. On the expiration of such six month period (or such Participant’s death) all such deferred payments shall be promptly made and all other payments shall be made as otherwise scheduled or provided for herein. |
6.2 | Retirement Account - Form of Payment: |
A. | Subject to Section 6.1F, if the Participant's Termination of Service shall occur as a result of Participant's Retirement or Disability, and the Participant has elected deferrals to a lump sum subaccount under Section 4.3A, the value of such subaccount is to be paid to the Participant within 90 days of (i) |
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Five Annual Installments | |||
Benefit Year | Percentage of Installment Retirement Account | ||
1 (Year of Retirement/5th anniversary of Retirement/65th birthday) | 20% | ||
2 | 25% | ||
3 | 33% | ||
4 | 50% | ||
5 | 100% |
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Ten Annual Installments | |||
Benefit Year | Percentage of Installment Retirement Account | ||
1 (Year of Retirement/5th anniversary of Retirement/65th birthday) | 10% | ||
2 | 11% | ||
3 | 13% | ||
4 | 14% | ||
5 | 17% | ||
6 | 20% | ||
7 | 25% | ||
8 | 33% | ||
9 | 50% | ||
10 | 100% |
Fifteen Annual Installments | |||
Benefit Year | Percentage of Installment Retirement Account | ||
1 (Year of Retirement/5th anniversary of Retirement/65th birthday) | 7% | ||
2 | 7% | ||
3 | 8% | ||
4 | 8% | ||
5 | 9% | ||
6 | 10% | ||
7 | 11% | ||
8 | 12% | ||
9 | 12% | ||
10 | 17% | ||
11 | 20% | ||
12 | 25% | ||
13 | 33% | ||
14 | 50% | ||
15 | 100% |
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Twenty Annual Installments | |||
Benefit Year | Percentage of Installment Retirement Account | ||
1 (Year of Retirement/5th anniversary of Retirement/65th birthday) | 5% | ||
2 | 5% | ||
3 | 6% | ||
4 | 6% | ||
5 | 6% | ||
6 | 7% | ||
7 | 7% | ||
8 | 8% | ||
9 | 8% | ||
10 | 9% | ||
11 | 10% | ||
12 | 11% | ||
13 | 13% | ||
14 | 14% | ||
15 | 17% | ||
16 | 20% | ||
17 | 25% | ||
18 | 33% | ||
19 | 50% | ||
20 | 100% |
B. | Subject to Section 6.1.F, notwithstanding any provision to the contrary, if at the time benefits are to commence, the Participant's Retirement Account has a value less than $10,000, the Participant's benefit hereunder shall be paid to the Participant as a lump sum within ninety (90) days of Participant’s Termination of Service, provided that Participant has no discretion or control in determining the Plan Year in which such lump sum amount is paid. |
6.3 | Education Account. |
A. | If a Participant does not incur a Termination of Service prior to January 1 of the calendar year in which an Eligible Student of the Participant attains a |
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Eligible Student's Determination Age | Percentage of Eligible Student's Subaccount | |
18 | 25 | % |
19 | 33 | % |
20 | 50 | % |
21 | 100 | % |
B. | Subject to Section 6.1F if a Participant should incur a Termination of Service for any reason while having a balance in his Education Account, the Vested portion of the balance shall be distributed to the Participant, or Beneficiary if applicable, in accordance with Section 6.1. |
C. | Notwithstanding any provision to the contrary, if, on the January 1 of the calendar year in which an Eligible Student of Participant attains age 18, the Eligible Student's subaccount has a balance of less than $20,000, then said balance shall be paid to the Participant as soon as administratively possible. |
A. | If a Participant does not incur a Termination of Service prior to a designated Benefit Distribution Date, the Employer shall pay to the Participant a benefit equal to the balance of the Participant's subaccount which has been earmarked with respect to said Benefit Distribution Date, provided, however, that each Participant shall have a one-time option in respect of each such Benefit Distribution Date, to postpone the Benefit Distribution Date for no less than five years, such option to be exercised, if at all, by written notice give to the Administrator no less than one year earlier than such original Benefit Distribution Date. |
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B. | Subject to Section 6.1.F, if a Participant should incur a Termination of Service for any reason while having a balance in his Fixed Period Benefit Account, the balance shall be distributed to the Participant, or Beneficiary, if applicable, in accordance with Section 6.1 |
A. | In the event of an unforeseen emergency, a Participant may apply in writing to the Committee for withdrawal against his Deferred Benefit Accounts, other than Excess DCRB Contributions and Investment Fund performance credited to such contributions in his Deferred Benefit Accounts. The withdrawal shall only be allowed at the discretion of the Committee and for purposes which constitute an "unforeseeable emergency" as defined in Section 409A(a)(2)(B)(ii)(I) of the Code and regulations promulgated thereunder. For the purpose of withdrawals, the value of all available Deferred Benefit Accounts shall be determined on the Determination Date next following the date as of which the application is approved by the Committee and shall be paid as soon as practical thereafter. The Committee shall approve such application only to relieve an unforeseeable emergency and shall make no distribution in excess of the amounts necessary to satisfy such emergency plus amounts necessary to pay taxes reasonably anticipated by the Participant as a result of the distribution, after taking into account the extent to which such hardship is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation of the Participant’s assets (to the extent the liquidation of such assets would not itself cause severe financial hardship). In making a determination whether to approve any such application, the Committee may require the Participant to submit such proof as to the existence of such unforeseeable emergency as the Committee shall deem necessary and shall consider all relevant facts and circumstances presented by the Participant. All determinations under this |
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B. | To the extent a withdrawal shall be permitted pursuant to this Section 6.5, the Participant's Deferred Benefit Accounts shall be correspondingly reduced in the following order: |
6.6 | Tax Withholding. To the extent required by the law in effect at the time benefits are distributed pursuant to this Article VI, the Employer or its agents shall withhold any taxes required by the federal or any state or local government from payments made hereunder. |
7.1 | Appointment of Administrator. Tiffany shall appoint, on behalf of all Participants, an Administrator. The Administrator may be removed by Tiffany at any time and he may resign at any time by submitting his resignation in writing to Tiffany. A new Administrator shall be appointed as soon as possible in the event that the Administrator is removed or resigns from his position. Any person so appointed shall signify his acceptance by filing a written acceptance with Tiffany. |
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7.2 | Administrator's Responsibilities. The Administrator is responsible for the day to day administration of the Plan. He may appoint other persons or entities to perform any of his fiduciary functions. Such appointment shall be made and accepted by the appointee in writing and shall be effective upon the written approval of Tiffany. The Administrator and any such appointee may employ advisors and other persons necessary or convenient to help him carry out his duties including his fiduciary duties. The Administrator shall have the right to remove any such appointee from his position. Any person, group of persons or entity may serve in more than one fiduciary capacity. |
7.3 | Records and Accounts. The Administrator shall maintain or shall cause to be maintained accurate and detailed records and accounts of Participants and of their rights under the Plan and of all investments, receipts, disbursements and other transactions. Such accounts, books and records relating thereto shall be open at all reasonable times to inspection and audit by the Employer and by persons designated thereby. |
7.4 | Administrator's Specific Powers and Duties. In addition to any powers, rights and duties set forth elsewhere in the Plan, the Administrator shall have the following discretionary powers and duties: |
A. | To adopt such rules and regulations consistent with the provisions of the Plan; |
B. | To enforce the Plan in accordance with its terms and any rules and regulations he establishes; |
C. | To maintain records concerning the Plan sufficient to prepare reports, returns and other information required by the Plan or by law; |
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D. | To construe and interpret the Plan and to resolve all questions arising under the Plan; |
E. | To direct the Employer to pay benefits under the Plan, and to give such other directions and instructions as may be necessary for the proper administration of the Plan; |
F. | To be responsible for the preparation, filing and disclosure on behalf of the Plan of such documents and reports as are required by any applicable federal or state law. |
7.5 | Employer's Responsibility to Administrator. The Employer shall furnish the Administrator such data and information as he may require. The records of the Employer shall be determinative of each Participant's period of employment, termination of employment and the reason therefor, leave of absence, reemployment, years of service, personal data, and compensation reductions. Participants and their Beneficiaries shall furnish to the Administrator such evidence, data, or information, and execute such documents as the Administrator requests. |
7.6 | Liability. Neither the Administrator nor the Employer shall be liable to any person for any action taken or omitted in connection with the administration of this Plan unless attributable to his own fraud or willful misconduct; nor shall the Employer be liable to any person for such action unless attributable to fraud or willful misconduct on the part of the director, officer or employee of the Employer. |
7.7 | Procedure to Claim Benefits. Each Participant or Beneficiary must claim any benefit to which he is entitled under this Plan by a written notification to the Administrator. If a claim is denied, it must be denied within a reasonable period of time, and be contained in a written notice stating the following: |
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A. | The specific reason for the denial, |
B. | Specific reference to the Plan Provision on which the denial is based, |
C. | Description of additional information necessary for the claimant to present his claim, if any, and an explanation of why such material is necessary, and |
D. | An explanation of the Plan's claim procedure. |
7.8 | Challenging Forfeiture of Benefits due to Termination for Cause. If the Committee shall have determined that a Participant or his Beneficiary shall forfeit any amounts attributable to Excess DCRB Contributions under this Plan due to a Termination of Service for Cause, such Participant (or his Beneficiary in the event Participant is deceased) shall have the right to elect to challenge such forfeiture through binding arbitration held in New York City, New York under the then existing Commercial Arbitration Rules of the American Arbitration Association. Arbitration proceedings shall be conducted by three arbitrators who shall be authorized to determine whether Cause for termination existed, but solely for the |
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8.1 | Plan Amendment. The Plan may be amended in whole or in part by Tiffany and Parent at any time; provided that no such amendment shall reduce any Participant's Vested Deferred Benefits. Notice of any such amendment shall be given in writing to each Participant and each Beneficiary of a deceased Participant. |
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8.2 | No Premature Distribution. No amendment hereto shall permit amounts accumulated pursuant to the Plan prior to the amendment to be paid to a Participant or Beneficiary prior to the time he would otherwise be entitled thereto. |
8.3 | Termination of the Plan. Tiffany reserves the right to terminate the Plan and/or the Deferral Agreements pertaining to Participants at any time in the event that Tiffany, in its sole discretion, shall determine that the economics of the Plan have been adversely and materially affected by a change in the tax laws, other governmental action or other event beyond the control of the Participant and Tiffany or that the termination of the Plan is otherwise in the best interest of the Tiffany. |
8.4 | Effect of Termination. In the event of Plan termination pursuant to Section 8.3, the Employer shall pay a benefit to the Participant or the Beneficiary of any deceased Participant as otherwise required under the Plan provided that the Employer retains the discretion, in the event of a Plan termination meeting the requirements of Section 1.409A-3 (j)(4)(ix) of the Treasury Regulations, to pay a lump-sum benefit in accordance with such Treasury Regulation to each Participant or the Beneficiary of any deceased Participant, in lieu of other benefits under this Plan, equal to the full value of Participant’s Deferred Benefit Accounts determined pursuant to Section 4.7. |
8.5 | Adverse Determination. Notwithstanding anything stated to the contrary in this Plan, if at any time, as a result of a Final Determination, a tax is payable by a Participant in respect of any benefit under this Plan prior to payment under the terms of this Plan of such benefit, then Employer shall pay to the Participant who is required to pay such tax the amount of such tax and such Participant's Deferred Benefits shall be reduced by the amount of such tax. Employer reserves the right, in its sole discretion, to allocate the amount of such tax among the various Deferred Benefit Accounts of any Participant who is required to pay such tax. For the purposes of this Section 8.5 the term "Final Determination" means (i) an assessment of tax by the United States Internal Revenue Service addressed to the Participant or his Beneficiary which is |
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9.1 | Supplemental Benefits. The benefits provided for the Participants under this Plan are in addition to benefits provided by any other plan or program of the Employer and, except as otherwise expressly provided for herein, the benefits of this Plan shall supplement and shall not supersede any plan or agreement between the Employer and any Participant. |
9.2 | Governing Law. The Plan shall be governed and construed under the laws of the State of New York as in effect at the time of its adoption. |
9.3 | Jurisdiction. The courts of the State of New York shall have exclusive jurisdiction in any or all actions arising under this Plan. |
9.4 | Binding Terms. The terms of this Plan shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, executors, administrators and successors. |
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9.5 | Spendthrift Provision. The interest of any Participant or any Beneficiary receiving payments hereunder shall not be subject to anticipation, nor to voluntary or involuntary alienation until distribution is actually made. |
9.6 | No Assignment Permitted. No Participant, Beneficiary or heir shall have any right to commute, sell, transfer, assign or otherwise convey the right to receive any payment under the terms of this Plan. Any such attempted assignment shall be considered null and void. |
9.7 | Construction. All headings preceding the text of the several Articles hereof are inserted solely for reference and shall not constitute a part of this Plan, nor affect its meaning, construction or effect. Where the context admits, words in the masculine gender shall include the feminine and neuter genders, and the singular shall mean the plural. |
9.8 | No Employment Agreement. Nothing in this Plan or in any Deferral Agreement entered into under this Plan shall confer on any Participant the right to continued employment with any Employer and, except as expressly set forth in a written agreement entered into with the express authorization of the Board of Directors of Employer, both the Participant and the Employer shall be free to terminate Participant's employment for any cause or without cause. |
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9.9 | 2005 and Subsequent Amendments. None of the amendments made to this Plan in 2005 or after shall be read to invalidate any election made on or prior to December 31, 2004 that would have been permissible under the terms of the Plan as it existed on December 31, 2004 and such elections shall be deemed to remain in effect unless changed as expressly provided for hereunder. |
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A. | All or a portion of the balances in Participant’s Deferred Benefit Accounts under that certain Tiffany and Company Amended and Restated Executive Deferral Plan, as Adopted by the Board of Directors May 20, 2010 (the “Deferral Plan”) are attributable to Excess DCRB Contributions made under the Deferral Plan and Investment Fund performance credited to such contributions (the “Excess DCRB Benefit”), and Participant has resigned or is about to resign his or her employment with Tiffany or its Affiliate; |
B. | Participant’s age at the effective date of such resignation was or will be less than 55 years; |
C. | But for Participant’s obligation to provide this instrument, Participant is otherwise Vested in a right to an Excess DCRB Benefit under the Deferral Plan; |
D. | Participant is willing to make the promises set forth in this instrument in order to obtain an Excess DCRB Benefit under the Deferral Plan; and |
E. | Participant agrees that the right to receive an Excess DCRB Benefit under the terms of the Deferral Plan is full and fair consideration for the promises made in this instrument, |
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a. | Any Person or group (as defined in Rule 13d-5 under the Exchange Act) of Persons (excluding (i) Parent or any of its Affiliates, (ii) a trustee or any fiduciary holding securities under an employee benefit plan of Parent or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iv) a corporation owned, directly or indirectly by stockholders of Parent in substantially the same proportions as their ownership of Parent, or (v) any surviving or resulting entity or ultimate parent entity resulting from a reorganization, merger, consolidation or other corporate transaction referred to in clause (c) below that does not constitute a Change in Control under clause (c) below) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Parent representing thirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities entitled to vote in the election of directors of Parent; |
b. | If the individuals who, as of March 17, 2016 constitute the Parent Board (such individuals, the “Incumbent Board”) cease for any reason to constitute a majority of such Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Parent’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such person were a member of the Incumbent Board; |
c. | The consummation of a reorganization, merger, consolidation or other corporate transaction involving Parent, in each case with respect to which the stockholders of Parent immediately prior to the consummation of such transaction would not, immediately after the consummation of such transaction, own more than fifty percent (50%) of the combined voting power of the surviving or resulting Person or ultimate parent entity resulting from such transaction, as the case may be; or |
d. | Assets representing 50% or more of the consolidated assets of Parent and its subsidiaries are sold, liquidated or distributed in a transaction (or series of transactions within a twelve (12) month period), other than such a sale or disposition immediately after which such assets will be owned directly or indirectly by the stockholders of Parent in substantially the same proportions as their ownership of the common stock of Parent immediately prior to such sale or disposition. |
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(ii) | use one of the following methods of delivery, each of which for purposes of this Agreement is a writing: |
(B) | Registered or Certified Mail, in each case, return receipt requested and postage prepaid; or |
(C) | Nationally recognized overnight courier, with all fees prepaid. |
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1. | NVIT Money Market Fund - Money Market |
2. | PIMCO VIT Total Return Admin. Fund - Bond |
3. | MFS VIT Value Fund - Large Cap Value |
4. | Fidelity VIP II Contra Fund - Large Cap Blend |
5. | T. Rowe Price New America Growth Fund - Large Cap Growth |
6. | Dreyfus Stock Index Fund - Large Blend |
7. | NVIT Multi-Manager Small Cap Value Fund - Small Cap Value |
8. | MS UIF Mid Cap Growth Fund - Mid Cap Growth |
9. | Janus Aspen Series Overseas Fund - Foreign Large Growth |
10. | Legg Mason ClearBridge Small Growth I - Small Cap Growth |
11. | Goldman Sachs VIT Mid Cap Value Fund - Mid Cap Value |
12. | Oppenheimer Global Securities VA Fund - Global Equity |
13. | PIMCO VIT Real Return - Bond |
14. | T. Rowe Price Limited Term Bond Fund - Short Term Bond |
15. | NVIT Mid Cap Index Fund - Mid Blend |
16. | Dreyfus IP Small Cap Index Fund - Small Blend |
17. | MFS VIT II International Value Fund - Frn Large Value |
18. | American Funds International 2 Fund - Frn Large Blend |
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(i) | Participant’s conviction or plea of nolo contendere to a felony or any other crime involving financial impropriety or which would tend to subject Employer or any of its Affiliates to public criticism or materially interfere with Participant’s continued service to Employer; |
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(ii) | Participant’s willful violation of the Code of Conduct; |
(iii) | Participant’s willful failure or refusal to perform substantially all such proper and achievable directives issued by Participant’s superior (other than any such failure resulting from Participant’s incapacity due to physical or mental illness, any such actual or anticipated failure resulting from a resignation by Participant for Good Reason, or any such refusal made by Participant in good faith because Participant believes such directives to be illegal, unethical or immoral) after a written demand for substantial performance is delivered to Participant on behalf of Employer, which demand specifically identifies the manner in which Participant has not substantially performed Participant’s duties, and which performance is not substantially corrected by Participant within ten (10) days of receipt of such demand; |
(iv) | Participant’s gross negligence in the performance of Participant’s duties and responsibilities materially injurious to the Employer; |
(v) | Participant’s willful breach of any material obligation that Participant has to Parent or Employer under any written agreement that Participant has with either Parent or Employer; |
(vi) | Participant’s fraud or dishonesty with regard to Employer or any of its Affiliates; |
(vii) | Participant’s failure to reasonably cooperate in any investigation of alleged misconduct by Participant or by any other employee of Parent, Employer or any Affiliate of Parent or Employer; |
(viii) | Participant’s death; or |
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a. | Any Person or group (as defined in Rule 13d-5 under the Exchange Act) of Persons (excluding (i) Parent or any of its Affiliates, (ii) a trustee or any fiduciary holding securities under an employee benefit plan of Parent or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iv) a corporation owned, directly or indirectly by stockholders of Parent in substantially the same proportions as their ownership of Parent, or (v) any surviving or resulting entity or ultimate parent entity resulting from a reorganization, merger, consolidation or other corporate transaction referred to in clause (c) below that does not constitute a Change in Control under clause (c) below) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Parent representing thirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities entitled to vote in the election of directors of Parent; |
b. | If the individuals who, as of March 17, 2016 constitute the Parent Board (such individuals, the “Incumbent Board”) cease for any reason to constitute a majority of such Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Parent’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such person were a member of the Incumbent Board; |
c. | The consummation of a reorganization, merger, consolidation or other corporate transaction involving Parent, in each case with respect to which the stockholders of Parent immediately prior to the consummation of such transaction would not, immediately after the consummation of such transaction, own more than fifty percent (50%) of the combined voting power of the surviving or resulting Person or ultimate parent entity resulting from such transaction, as the case may be; or |
d. | Assets representing 50% or more of the consolidated assets of Parent and its subsidiaries are sold, liquidated or distributed in a transaction (or series of transactions within a twelve (12) month period), other than such a sale or disposition immediately after which such assets will be owned directly or indirectly by the stockholders of Parent in substantially the same proportions as their ownership of the common stock of Parent immediately prior to such sale or disposition. |
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(i) | a meaningful and detrimental alteration in Participant’s position or the nature or status of Participant’s responsibilities (including reporting responsibilities) from those in effect immediately before the Change in Control Date; |
(ii) | a material failure by Employer to pay Participant a bonus or incentive award commensurate with the bonus paid others at Participant’s job level (expressed as a percentage of target bonus) unless such failure is justified by clear and objective deficiencies of the business units for which Participant is responsible; or |
(iii) | the relocation of the office of Employer where Participant was employed immediately prior to the Change in Control Date to a location which is more than 50 miles away or should Employer require Participant to be based more than 50 miles away from such office (except for required travel on the Employer’s business to an extent substantially consistent |
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(i) | Separation from Service shall occur when the Participant has experienced a termination of employment with the Employer. A Participant shall be considered to have experienced a termination of employment for this purpose when the facts and circumstances indicate that the Participant and his or her Employer reasonably anticipate that either (A) no further services will be performed by the Participant for the Employer after the applicable date, or (B) that the level of bona fide services the Participant will perform for the Employer after such date (whether as an employee or as an independent contractor) will permanently decrease to no more than 20% of the average level of bona fide services performed by the Participant (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services to the Employer if the Participant has been providing services to the Employer less than 36 months). |
(ii) | If the Participant is on military leave, sick leave, or other bona fide leave of absence, other than a disability leave, the employment relationship between the Participant and the Employer shall be treated as continuing intact, provided that the period of such leave does not exceed 6 months, or if longer, so long as the Participant retains a right to reemployment with the Employer under an applicable statute or by contract. If the period of a military leave, sick leave, or other bona fide leave of absence exceeds 6 months and the Participant does not retain a right to reemployment under |
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2.1 | Commencement of Participation. Each Eligible Employee who is an Eligible Employee on an Entry Date shall become a Participant in the Plan as of the first day of such Plan Year. |
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2.2 | Procedure For and Effect of Admission. Each individual who becomes eligible for admission to participate in this Plan shall complete such forms and provide such data as are reasonably required by the Employer as a condition of such admission and will, on the request of Employer, submit to a physical examination by a physician and make such applications for life insurance in order that the Employer may, if Employer determines to do so, obtain a policy of life insurance for the benefit of Employer on the life of such individual in such amounts as Employer shall, in its sole discretion, determine to be necessary or desirable. By becoming a Participant, each individual shall for all purposes under this Plan be deemed conclusively to have assented to the provisions of this Plan and all amendments hereto and to the termination of the pre-existing Tiffany and Company Supplemental Retirement Income Plan which pre-existing plan became effective the 20th day of October, 1989. |
2.3 | Cessation of Participation. Subject to Section 2.4 below, Participant shall cease to be a Participant the earlier of: (i) the date on which the Plan terminates, or (ii) the date of his Separation from Service. A former Participant will be deemed a Participant, for all purposes of this Plan, as long as such former Participant retains a Vested interest pursuant to the terms of Article III. |
2.4 | Disability. Notwithstanding any other provisions in this Plan, in the event a Participant incurs a Disability while Employed (whether or not such Disability arises out of such Employment), and for so long as such Disability continues, such Participant shall continue to be a Participant hereunder until the earlier of (i) Participant's death, (ii) Participant's Permitted Retirement or (iii) the cessation of such Disability, and Participant's Compensation in the last 12 months of his active Employment shall be deemed to be his Compensation for the purposes of this Plan during the period of such Disability. Any benefit payable to the Participant described in this Section 4 shall be payable commencing in the month following the month in which Participant attains Retirement Age. |
3.1 | Overriding Limitation. Except as provided in this Section 3.1, under no circumstances will a Participant or a former Participant be entitled to a Benefit under this Plan unless and until he becomes entitled to payment of a Pension Benefit. In the event the Pension Plan and/or the Excess Plan shall have been terminated as of the time a Pension Benefit would have become payable under the Pension Plan to the Participant or former Participant, the Benefit under this Plan shall be calculated by application, by means of the formula set forth in Section 3.2 below, of the Pension Benefit which would have been payable to Participant under the Pension Plan and the Excess Plan as in effect on February 1, 2007, and if Participant would not have been entitled to a Pension Benefit under the Pension |
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3.2 | Retirement Benefit. Commencing the first day of a month within sixty (60) days of Retirement, Employer will pay a Participant an annual Benefit calculated on the basis of such Participant's Years of Service and Average Final Compensation using the following table and then by subtracting Participant's Pension Benefit and Social Security Benefit: |
Years of Service | Benefit as a Percentage of Participant's Average Final Compensation |
25 or more | 60% |
20-24 | 50% |
15-19 | 35% |
10-14 | 20% |
less than 10 | nil% |
3.3 | Early Retirement Benefit. In lieu of the Benefit provided under Section 3.2 above, commencing the first day of a month within sixty (60) days of Early Retirement, Employer will pay a Participant a Benefit. For a Participant who has attained age 60, who has not attained age 65 and who has rendered 10 or more years of Creditable Service, the annual amount of such Benefit shall be the annual Benefit stated in Section 3.2 reduced by 1/12 of 5 percent for each month that Participant’s Early Retirement date precedes the date that such Participant would reach Retirement Age. For a Participant who has attained age 55, who has not attained age 60 and who has rendered 10 or more years of Creditable Service, the annual amount of such benefit shall be the annual Benefit stated in Section 3.2 reduced by the sum of (i) 25 percent and (ii) 1/12th of 3 percent for each month by which his attained age at the date of his retirement is less than age 60. |
3.4 | Optional Benefits in Lieu of Regular Benefits. |
(a) | A Participant under this Plan who is not married at his Scheduled Benefit Commencement Date shall be deemed to have elected that the retirement allowance payable under this Plan be payable in the form of an annuity for the life of the Participant, with no benefits continued to any person after his death, and a Participant under this Plan who is married as of his Scheduled Benefit Commencement Date shall be deemed to have elected that the annual retirement allowance payable under this Plan be payable in the form of a reduced annuity for the life of the Participant, with 50% of |
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(b) | A Participant shall be permitted to elect to receive his benefit under this Plan in the form of an annuity payable for his life, with the provision that after his death an allowance of 50%, 66-2/3%, 75% or 100% of the rate of his reduced allowance, as he shall elect, shall continue during the life of, and shall be paid to, the beneficiary designated by him at the time of electing the option. The amount payable to the Participant under any optional form or annuity shall be reduced from the amount otherwise payable for his life only, so that such annuity is the Actuarial Equivalent of the amount otherwise payable for his life only. |
(c) | An election of an optional form of annuity shall be made at such time and in such manner as the Committee may direct, provided, however, that no election shall be given effect unless it is made prior to the Participant's Scheduled Benefit Commencement Date. |
3.5 | Separation from Service. No Benefit shall be or become payable to a Participant if the Participant ceases to be a Participant without obtaining a Vested interest with respect to his Benefit. |
3.6 | Vesting and Forfeiture of Vested Benefits. |
(i) | Subject to Section 3.1 above, a Participant shall have a Vested interest with respect to his Benefit upon Permitted Retirement. |
(ii) | Subject to Section 3.1 above, upon a Change in Control each Participant shall then have a Vested interest with respect to his Benefit as provided in Section 6.1 below. |
(iii) | If a Participant’s benefit under the Excess Plan is forfeited as provided for in Section 3.12 of the Excess Plan then any Benefit that would otherwise be payable to a Participant or to his Beneficiary under this Plan, whether or not Vested, shall be likewise forfeited; any decision regarding such forfeiture made under or pursuant to the provisions of the Excess Plan shall be binding for all purposes of this Plan. |
3.7 | Adjustment, Amendment, or Termination of Vested Benefits. Notwithstanding any other provision to the contrary, the Employer may not adjust, amend, or terminate its obligations to a Participant under this Plan subsequent to that date on which |
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3.8 | Tax Withholding. To the extent required by the law in effect at the time benefits are distributed pursuant to this Article III, the Employer or its agents shall withhold any taxes required by the federal or any state or local government from payments made hereunder. |
3.9 | Delay of Payments. In no event shall monthly payments of an annual retirement allowance payable under this Plan be made earlier than 6 months following Participant’s Separation from Service; provided that promptly following the expiration of such 6 month period, a lump sum payment will be made to such person equal to all monthly installments that would, but for the provisions of this Section 3.9, have been paid to such person under this Plan, plus interest on the monthly payments that subject to such delay, at the Applicable Interest Rate for such period. Whenever the amount of any payment under this Plan is to be determined, it shall be determined without reference to this Section 3.9 on the assumption that such payments would earlier commence as otherwise provided for in this Article III but for the effect of this Section 3.9. |
4.1 | Unfunded Benefits. Benefits are payable as they become due irrespective of any actual investments the Employer may make to meet its obligations. Neither the Employer, nor any trustee (in the event the Employer elects to use a grantor trust to accumulate funds) shall be obligated to purchase or maintain any asset including any life insurance policy. To the extent a Participant or any person acquires a right to receive payments from the Employer under this Plan, such right shall be no greater than the right of any unsecured creditor of the Employer. |
5.1 | Plan Amendment. Subject to Sections 3.6, 3.7 and 6.1, this Plan may be amended in whole or in part by the Employer at any time. |
5.2 | Plan Termination. Subject to Sections 3.6, 3.7 and 6.1, the Employer reserves the right to terminate this Plan at any time but only in the event that the Employer, in its sole discretion, shall determine that the economics of the Plan have been adversely and materially affected by a change in the tax laws, other government action or other event beyond the control of the Participant and the Employer or that the termination of the Plan is otherwise in the best interest of Employer. |
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6.1 | Benefits Vest in the Event of a Change in Control. On a Change in Control each Participant shall become Vested in his Benefit as provided in subsections (i) through (v) below. |
(i) | Payment of a Benefit to a Participant who has attained Minimum Age and Service on the Change in Control Date shall not be conditioned upon an Involuntary Termination. |
(ii) | Payment of a Benefit to a Participant who has not attained Minimum Age and Service on the Change in Control Date shall be conditioned upon, and shall not be paid or payable unless such Participant incurs, an Involuntary Termination; such condition shall remain in effect until such time as such Participant has attained Minimum Age and Service; following such time as such Participant attains Minimum Age and Service payment of his Benefit shall not be conditioned upon an Involuntary Termination. |
(iii) | In the case of a Participant subject to Subsection 6.1 (ii) above who becomes entitled to a Benefit due to an Involuntary Termination, such Benefit will be calculated using the greater of ten (10) Years of Service or actual Years of Service, and such Benefit will commence the first day of a month within sixty (60) days of the later of (a) Participant’s Separation from Service, or (b) Participant’s attainment of age 55. |
(iv) | Following a Change in Control Employer shall continue to credit all Participants who are Vested and who remain Employed with Years of Service for purposes of Section 3.2 above regardless of Employer’s decision to freeze or terminate the Plan. |
(v) | A Change in Control shall not accelerate the date on which any person is entitled to receive a Benefit under this Plan, alter the overriding limitation set forth in Section 3.1 above or relieve Participant from the forfeiture provisions of Section 3.6 above. |
7.1 | Appointment of Administrator. The Employer is the named fiduciary of the plan for which this document is the written instrument. The Employer shall appoint, on behalf of all Participants, an Administrator. The Administrator may be removed by the Employer at any time and he may resign at any time by submitting his resignation in writing to the Employer. A new Administrator shall be appointed as soon as possible in the event that the Administrator is removed or |
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7.2 | Administrator's Responsibilities. The Administrator is responsible for the day to day administration of the Plan. He may appoint other persons or entities to perform any of his functions. Such appointment shall be made and accepted by the appointee in writing and shall be effective upon the written approval of the Employer. The Administrator and any such appointee may employ advisors and other persons necessary or convenient to help him carry out his duties including his fiduciary duties. The Administrator shall have the right to remove any such appointee from his position. |
7.3 | Records and Accounts. The Administrator shall maintain or shall cause to be maintained accurate and detailed records of Participants and of their rights under the Plan. Such accounts, books and records relating thereto shall be open at all reasonable times to inspection and audit by the Employer and by persons designated thereby. |
7.4 | Administrator's Specific Powers and Duties. In addition to any powers, rights and duties set forth elsewhere in the Plan, the Administrator shall have the following powers and duties: |
A. | To adopt such rules and regulations consistent with the provisions of the Plan; |
B. | To enforce the Plan in accordance with its terms and any rules and regulations he establishes; |
C. | To maintain records concerning the Plan sufficient to prepare reports, returns and other information required by the Plan or by law; |
D. | To construe and interpret the Plan and to resolve all questions arising under the Plan; |
E. | To direct the Employer to pay benefits under the Plan, and to give such other directions and instructions as may be necessary for the proper administration of the Plan; |
F. | To be responsible for the preparation, filing and disclosure on behalf of the Plan of such documents and reports as are required by any applicable federal or state law. |
7.5 | Employer's Responsibility to Administrator. The Employer shall furnish the Administrator such data and information as he may require. The records of the Employer shall be determinative of each Participant's period of employment, |
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7.6 | Liability. Neither the Administrator nor the Employer shall be liable to any person for any action taken or omitted in connection with the administration of this Plan unless attributable to his own fraud or willful misconduct; nor shall the Employer be liable to any person for such action unless attributable to fraud or willful misconduct on the part of the director, officer or employee of the Employer. |
A. | The specific reason for the denial, |
B. | Specific reference to the Plan Provision on which the denial is based, |
C. | Description of additional information necessary for the Claimant to present his claim, if any, and an explanation of why such material is necessary, and |
D. | A description of this Plan’s review procedures and the time limits applicable to such procedures, including a statement of the Claimant’s right to bring a civil action under Section 502(a) of the Employee Retirement Income Security Act of 1974. |
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A. | The specific reasons for the adverse determination, |
B. | Reference to the specific Plan Provisions on which the adverse determination is based, |
C. | A statement that the Claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the Claimant’s claim for benefits, and |
D. | A statement of the Claimant’s right to bring an action under section 502(a) of the Employee Retirement Income Security Act of 1974. |
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8.1 | Supplemental Benefits. The benefits provided for the Participants under this Plan are in addition to benefits provided by any other plan or program of the Employer and, except as otherwise expressly provided for herein, the benefits of this Plan shall supplement and shall not supersede any plan or agreement between the Employer and any Participant. |
8.2 | Governing Law. The Plan shall be governed and construed under the laws of the State of New York as in effect at the time of its adoption. |
8.3 | Jurisdiction. The courts of the State of New York shall have exclusive jurisdiction in any or all actions arising under this Plan. |
8.4 | Binding Terms. The terms of this Plan shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, executors, administrators and successors. |
8.5 | Spendthrift Provision. The interest of any Participant or any beneficiary receiving payments hereunder shall not be subject to anticipation, nor to voluntary or involuntary alienation until distribution is actually made. |
8.6 | No Assignment Permitted. No Participant, Beneficiary or heir shall have any right to commute, sell, transfer, assign or otherwise convey the right to receive any payment under the terms of this Plan. Any such attempted assignment shall be considered null and void. |
8.7 | Severability. In the event any provision of this Plan shall be held illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining provisions of the Plan, and the Plan shall be construed and enforced as if such illegal or invalid provision had never been contained therein. |
8.8 | Construction. All headings preceding the text of the several Articles hereof are inserted solely for reference and shall not constitute a part of this Plan, nor affect its meaning, construction or effect. Where the context admits, words in the masculine gender shall include the feminine and neuter genders, and the singular shall mean the plural. |
8.9 | No Employment Agreement. Nothing in this Plan shall confer on any Participant the right to continued employment with any Employer and, except as expressly |
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8.10 | Section 409A Compliance. The Company intends that the Plan meet the requirements of Section 409A of the Code and the guidance issued thereunder. The Plan shall be administered, construed and interpreted in a manner consistent with that intention. In no event shall the Company have any liability or obligation with respect to taxes for which the Participant may become liable as a result of the application of Section 409A of the Code. The Plan has been administered in good faith compliance with Section 409A and the guidance issued thereunder from January 1, 2005 through December 31, 2008. |
TIFFANY AND COMPANY | ||
ATTEST: | ||
By: /s/ John C. Duffy | By: /s/ Leigh M. Harlan | |
Name: John C. Duffy | Name: Leigh M. Harlan | |
Title: Assistant Secretary | Title: SVP - General Counsel, Secretary | |
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(i) | Participant’s conviction or plea of no contest to a felony involving financial impropriety or a felony which would tend to subject the Company or any of its Affiliates to public criticism or materially interfere with Participant’s continued service to the Company or its Affiliate; |
(ii) | Participant’s willful and unauthorized disclosure of material “Confidential Information” (as that term is defined in the Non-Competition and Confidentiality Covenants) which disclosure is in breach of such Covenants and actually results in substantive harm to the Company’s or its Affiliate’s business or puts such business at an actual competitive disadvantage; |
(iii) | Participant’s willful failure or refusal to perform substantially all such proper and achievable directives issued by Participant’s superior (other than: (A) any such failure resulting from Participant’s incapacity due to physical or mental illness, or (B) any such refusal made by Participant in good faith because Participant believes such directives to be illegal, unethical or immoral) after a written demand for substantial performance is delivered to Participant on behalf of Company, which demand specifically identifies the manner in which Participant has not substantially performed Participant’s duties, and which performance is not substantially corrected by Participant within ten (10) days of receipt of such demand; |
(iv) | Participant’s commission of any willful act which is intended by Participant to result in his personal enrichment at the expense of the Company or any of its Affiliates, or which could reasonably be expected by him to materially injure the reputation, business or business relationships of the Company or any of its Affiliates; |
(v) | A theft, fraud or embezzlement perpetrated by Participant upon Company or any of its Affiliates. |
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(i) | Separation from Service shall occur when the Participant has experienced a termination of employment with the Employer. A Participant shall be considered to have experienced a termination of employment for this purpose when the facts and circumstances indicate that the Participant and his or her Employer reasonably anticipate that either (A) no further services will be performed by the Participant for the Employer after the applicable date, or (B) that the level of bona fide services the Participant will perform for the Employer after such date (whether as an employee or as an independent contractor) will permanently decrease to no more than 20% of the average level of bona fide services performed by the Participant (whether as an employee or an independent contractor) over the immediately preceding 36-month period (or the full period of services to the Employer if the Participant has been providing services to the Employer less than 36 months). |
(ii) | If the Participant is on military leave, sick leave, or other bona fide leave of absence, other than a disability leave, the employment relationship |
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(iii) | If the Participant is on disability leave, the employment relationship between the Participant and the Employer shall be treated as continuing intact, provided that the period of such leave does not exceed 29 months. If the period of disability leave exceeds 29 months, the employment relationship shall be considered to be terminated for purposes of this Plan as of the first day immediately following the end of such 29-month period. For purposes of this paragraph, disability leave refers to a leave of absence that is due to any medically determinable physical or mental impairment that can be expected to result in death of can be expected to last for a continuous period of not less than 6 months, where such impairment causes the Participant to be unable to perform the duties of his position of employment or any substantially similar position of employment. |
2.1 | Commencement of Participation. Each Select Management Employee shall automatically become a Participant in this Plan as of the latter of (i) the Effective Date, (ii) the date he or she first becomes a Participant in the Pension Plan or (iii) the date he or she is first appointed a Select Management Employee by the Board. |
2.2 | Cessation of Participation and Re-commencement of Participation. A Participant shall cease to be a Participant on the earlier of: (i) the date on which this Plan terminates or (ii) the date on which he ceases to be a Participant in the Pension Plan. A former Participant shall again become a Participant in this Plan when he again becomes a Participant in the Pension Plan. Except to the extent |
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3.1 | Overriding Limitation. Except as provided in this Section 3.1, under no circumstances will a Participant or a former Participant be entitled to a Benefit under this Plan unless Participant becomes Vested in his Normal Retirement Pension Benefit. In the event the Pension Plan shall have been terminated as of the time a Pension Benefit would have become payable to Participant under the Pension Plan, the Benefit under this Plan shall be calculated by application, by means of the formula set forth in Section 3.2 below, of the Normal Retirement Pension Benefit which would have been payable to Participant under the Pension Plan as in effect on February 1, 2007; and if Participant would not have been entitled to a Pension Benefit under the Pension Plan as in effect on February 1, 2007 as of the date a Benefit would otherwise become payable hereunder, no Benefit shall be payable under this Plan. |
3.2 | Annual Retirement Allowance; Commencement. |
(a) | Subject to Section 3.2(c) and Section 3.12 below, any person who, subsequent to December 31, 2003 and prior to January 1, 2008 ceases to be a Participant after he is Vested and has rendered 10 or more years of Creditable Service, and any Participant who incurs a Separation from Service after December 31, 2007 after he is Vested and has rendered more than 10 years of Creditable Service, shall be entitled to an annual retirement allowance, payable in monthly installments commencing at the end of the later of (i) for a person who ceased to be a participant after December 31, 2003 and prior to January 1, 2008, the calendar month immediately following the month the person ceased to be a Participant and for a person who incurred a Separation from Service after December 31, 2007, the calendar month immediately following his Separation from Service; or (ii) the calendar month immediately following the month in which the person’s 55th birthday occurs. |
(b) | Subject to the other provisions of this Article III, any person who, subsequent to December 31, 2003 and prior to January 1, 2008 ceases to be a Participant after he is Vested and who has not rendered 10 or more years of Creditable Service, and any Participant who |
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(c) | With respect to a Participant who ceased performing Creditable Service subsequent to December 31, 2003 and prior to February 1, 2007, the provisions of Section 3.2(a) and (b) shall be modified as follows. Such Participant shall not be eligible to commence an annual retirement allowance under Section 3.2(a) unless he has rendered 15 or more years of Creditable Service, and in that event such retirement allowance shall commence no earlier than the end of the calendar month immediately following the month in which his 60th birthday occurs. If such Participant has not rendered 15 or more years of Creditable Service, his annual retirement allowance shall commence at the time specified under Section 3.2(b). |
(d) | Monthly installments payable under this Section 3.2 shall continue to be paid to and including the last monthly payment in the month of his death. In all cases the amount of the annual retirement allowance shall be computed in accordance with Sections 3.3, 3.4 or 3.5 below, whichever may be applicable. |
3.3 | Normal Retirement Benefit. The annual retirement allowance for a Vested person who ceases to be a Participant on or after January 1, 2003 and prior to January 1, 2008, or a Participant who incurs a Separation from Service after December 31, 2007, and whose Scheduled Benefit Commencement Date is no earlier than his 65th birthday, shall be equal to (A) less (B), where (A) equals 1 percent of the person’s Average Final Compensation not in excess of Covered Compensation multiplied by the number of his years, including fractions thereof, of Creditable Service, plus 1-1/2 percent of his Average Final Compensation in excess of Covered Compensation multiplied by the number of his years, including fractions thereof, of Creditable Service, determined as of the date of his Separation from Service, and (B) equals such person’s Normal Retirement Pension Benefit, determined as of the date of his Separation from Service. For purposes of calculating the value of (A) in the foregoing sentence, but not for purposes of calculating the value of (B) therein, |
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3.4 | Early Retirement Benefit. The annual retirement allowance for a Vested person who has rendered 10 or more years of Creditable Service (15 or more years of Creditable Service for a person whose Creditable Service ceased prior to February 1, 2007), and who ceases to be a Participant on or after January 1, 2003 and prior to January 1, 2008, or incurs a Separation from Service after December 31, 2007, and whose Scheduled Benefit Commencement Date is no earlier than his 60th birthday, but prior to his 65th birthday shall be equal to the annual retirement allowance computed in accordance with Section 3.3 above reduced by 1/12th of 5 percent for each month by which his attained age at his Scheduled Benefit Commencement Date is less than age 65. The annual retirement allowance for a Vested person who has rendered 10 or more years of Creditable Service (all or a portion of which Creditable Service was performed on or after February 1, 2007), and who ceases to be a Participant on or after January 1, 2003 and prior to January 1, 2008, or incurs a Separation from Service after December 31, 2007, and whose Scheduled Benefit Commencement Date is after the occurrence of his 55th birthday, but prior to his 60th birthday, shall be equal to the annual retirement allowance computed in accordance with Section 3.3 above reduced by a percentage which shall be the sum of (i) 25 percent and (ii) 1/12th of 3 percent for each month by which his attained age at his Scheduled Benefit Commencement Date is less than age 60. |
3.5 | Vested Retirement Benefit. The annual retirement allowance for a Vested person to whom Section 3.3 does not apply and whose retirement allowance commences before the occurrence of his 65th birthday shall be equal to the retirement allowance computed in accordance with Section 3.3 reduced to be the Actuarial Equivalent of such allowance. |
3.6 | Optional Benefits in Lieu of Regular Benefits. |
(a) | A Participant under this Plan who is not married at his Scheduled Benefit Commencement Date shall be deemed to have elected that the retirement allowance payable under this Plan be payable in the form of an annuity for the life of the Participant, with no benefits continued to any person after his death, and a Participant under this Plan who is married as of his Scheduled Benefit Commencement Date shall be deemed to have elected that the annual retirement allowance payable under this Plan be payable in the form of an annuity for the life of the Participant, with 50% of such annuity continued for the life of his surviving spouse, unless the Participant elects, prior to his Scheduled Benefit |
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(b) | A Participant shall be permitted to elect to receive his benefit under this Plan in the form of an annuity payable for his life, with the provision that after his death an allowance of 50%, 66-2/3%,75% or 100% of the rate of his reduced allowance, as he shall elect, shall continue during the life of, and shall be paid to, the beneficiary designated by him at the time of electing the option. The amount payable to the Participant under any optional form or annuity shall be reduced from the amount otherwise payable for his life only, so that such annuity is the Actuarial Equivalent of the amount otherwise payable for his life only. |
(c) | An election of an optional form of annuity shall be made at such time and in such manner as the Committee may direct, provided, however, that no election shall be given effect unless it is made prior to the Participant's Scheduled Benefit Commencement Date |
3.7 | Survivorship Benefits. |
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3.8 | Termination of Benefit Payments. Payment of Benefits under this Article III to a Participant, former Participant, Participant’s spouse or beneficiary, or former Participant’s spouse or other beneficiary shall cease with the monthly payment for the month in which such Participant, former Participant, spouse or beneficiary dies. |
3.9 | Disabled Participants. Notwithstanding any other provisions in this Plan, a Participant who incurs a Disability shall be treated as a Participant and shall continue to accrue Creditable Service until he dies, , becomes ineligible for further payments under such Program, or attains his 65th birthday, whichever shall first occur, and his Compensation in the last full year of his employment shall be deemed to be his annual Compensation for purposes of this Plan during such period. Any retirement allowance payable on his account under this Plan shall be made on the basis of his age, Average Final Compensation and Creditable Service at the time he died, attained his 65th birthday, or became ineligible. Any benefit |
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3.10 | Delay of Payments. In no event shall monthly payments of an annual retirement allowance payable under this Plan, or any payments under Section 3.11 below, be made earlier than 6 months following the date the payee ceased to be a Participant under this Plan; provided that promptly following the expiration of such 6 month period, a lump sum payment will be made to such person equal to all monthly installments that would, but for the provisions of this Section 3.10, have been paid to such person under this Plan, plus interest on the monthly payments that subject to such delay, at the Applicable Interest Rate for such period. Whenever the amount of any payment under this Plan is to be determined, it shall be determined without reference to this Section 3.10 on the assumption that such payments would earlier commence as otherwise provided for in this Article III but for the effect of this Section 3.10. |
3.11 | Required Cash-outs of Certain Accrued Benefits. If a Participant terminates service prior to January 1, 2009 and the present value of the Vested accrued pension or survivor benefit provided under Article III hereof in respect of such Participant is equal to or less than $5,000, or if a Participant incurs a Separation from Service after December 31, 2008 and the present value of the Vested accrued pension or survivor benefit provided under Article III hereof in respect of such Participant is equal to or less than the limitation in effect under Section 402(g)(1)(B) of the Code for the year in which he incurs such Separation from Service, the person to whom such benefits would otherwise be paid in monthly installments shall receive a lump-sum distribution of the present value of the entire Vested portion of such Accrued Benefit. For the purposes of determining the present value of a Vested Accrued Benefit under this Section 3.11, actuarial assumptions used under the Pension Plan for a comparable determination under the Pension Plan shall be used. Notwithstanding any provision in this Plan to the contrary, if a former Participant who has received a lump-sum distribution of his entire non-forfeitable benefit under this Plan pursuant to this Section 3.11 is re-employed by the Company, he shall be treated as a new Employee and prior service performed by the former Participant in respect of such distribution shall be disregarded for purposes of determining his Accrued Benefit under this Plan. A lump sum payment that is payable to a Participant in accordance with this Section shall be paid on the first day of the seventh month following the month in which he incurred a Separation from Service. |
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3.12 | Vesting and Forfeiture of Vested Benefits. A Participant shall be Vested in his Accrued Benefit under this Plan if that person is vested under the Pension Plan, provided that any Benefit that would otherwise be payable to a Participant or to the beneficiary of any Participant shall be forfeited in the event that (i) Participant’s employment with the Company is terminated by the Company for Cause, (ii) Participant voluntarily resigns from the Company prior to reaching Participant’s Normal Retirement Age and fails to execute and deliver to the Company the Non-Competition and Confidentiality Covenants prior to the effective date of such resignation, or (iii) a former Participant who has executed and delivered the Non-Competition and Confidentiality Covenants breaches Section 2 of such Covenants. |
3.13 | Adjustment, Amendment, or Termination of Benefit. Notwithstanding any other provision in this Plan to the contrary, the Company may not adjust, amend, or terminate its obligations to a Participant in respect of his Accrued Benefit under this Article III subsequent to that date on which Participant is Vested pursuant to Section 3.12 above except as expressly provided in Section 3.12 above. |
3.14 | Tax Withholding. To the extent required by the law in effect at the time benefits are distributed pursuant to this Article III, the Company or its agents shall withhold any taxes required by the federal or any state or local government from payments made hereunder. |
4.1 | Unfunded Benefits. Benefits are payable as they become due irrespective of any actual investments the Company may make to meet its obligations. Neither the Company, nor any trustee (in the event the Company elects to use a grantor trust to accumulate funds) shall be obligated to purchase or maintain any asset including any life insurance policy. To the extent a Participant or any other person acquires a right to receive payments from the Company under this Plan, such right shall be no greater than the right of any unsecured creditor of the Company. |
4.2 | No Contributions. Participants are neither required nor permitted to make contributions to this Plan. |
5.1 | Plan Amendment. Subject to Sections 3.12 and 3.13, this Plan may be amended in whole or in part by the Company at any time. |
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5.2 | Plan Termination. Subject to Sections 3.12 and 3.13, the Company reserves the right to terminate this Plan at any time but only in the event that the Company, in its sole discretion, shall determine that the economics of this Plan have been adversely and materially affected by a change in the tax laws, other government action or other event beyond the control of the Participant and the Company or that the termination of this Plan is otherwise in the best interest of Company. To the extent consistent with the rules relating to plan terminations and liquidations in Section 1.409A-3(j)(4)(ix) of the Regulations or otherwise consistent with Section 409A of the Code, the Company may provide that, without the prior written consent of Participants, the Participants’ benefits hereunder shall be distributed in a lump sum upon termination of the Plan. Unless so distributed in accordance with the preceding sentence, in the event of a Plan termination, benefits hereunder shall continue to be paid in accordance with the foregoing provisions of the Plan. |
6.1 | Committee. The general administration of this Plan shall be the responsibility of the Committee. The Committee is the named fiduciary of this Plan for which this document is the written instrument. The Committee from time to time may establish rules for the administration of this Plan and the transaction of it business. Except to the extent the Board is required to determine whether the termination of a Participant’s employment is for Cause, the Committee shall have the sole discretionary authority to determine eligibility for benefits under this Plan and to construe the terms of this Plan and resolve any ambiguities hereunder. The interpretation and construction of any provision of this Plan by a majority of the members of the Committee at a meeting shall be final and conclusive. The interest assumptions, service tables, mortality tables and such other data, procedures and methods as may be necessary or desirable for use in all actuarial calculations required in connection with this Plan shall be those used in connection with the Pension Plan, except as otherwise required by the express provisions of this Plan. |
6.2 | Claims Procedures. Except as provided in Section 6.3 this Section shall govern every claim for benefits under this Plan. Every claim for benefits under this Plan shall be in writing directed to the Committee or its designee. Each claim filed shall be passed upon by the Committee within a reasonable time from its receipt. If a claim is denied in whole or in part the claimant shall be given written notice of the denial in language calculated to be understood by the claimant, which notice shall: (i) specify the reason or reasons for the denial; (ii) specify the Plan provisions giving rise to the denial; (iii) describe any further information or |
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6.3 | Challenging Forfeiture of Benefits due to Termination for Cause. If the Board, the Committee or both shall have determined that a Participant or his beneficiary shall forfeit a benefit under this Plan due to a termination of employment for Cause, such Participant (or his beneficiary in the event Participant is deceased) shall have the right to elect to challenge such forfeiture through binding arbitration held in New York City, New York under the then existing Commercial Arbitration Rules of the American Arbitration Association. Arbitration proceedings shall be conducted by three arbitrators who shall be authorized to determine whether Cause for termination existed, but solely for the purpose of determining rights to benefits under this Plan. Without limit to their general authority, the arbitrators shall have the right to order reasonable discovery in accordance with the Federal Rules of Civil Procedure. The final decision of the arbitrators shall be binding and enforceable without further legal proceedings in court or otherwise, provided that either party to such arbitration may enter judgment upon the award in any court having jurisdiction. The final decision arising from the arbitration shall be accompanied by a written opinion and decision which shall describe the rational underlying the award and shall include findings of fact and conclusions of law. The cost of such arbitration shall initially be borne equally to the parties to such arbitration (which parties shall be limited to the Company and the Participant (or his beneficiary)), and each party shall bear its or his own legal fees; however, the arbitrators shall have authority to award the Participant (or his beneficiary) his or her legal fees and costs if the arbitrators determine that the decision to forfeit any benefit was made in bad faith. As a condition to proceeding with such arbitration the Company may require the Participant or his beneficiary to agree, in writing, that the arbitration award will be binding upon the Participant or such beneficiary, as the case may be, in connection with rights under this Plan, and that the Participant waives any right to proceed through court proceedings. Such award shall be confidential and shall not be binding or admissible in connection with any other proceeding. |
7.1 | Supplemental Benefits. The benefits provided for the Participants under this Plan are in addition to benefits provided by any other plan or program of the Company and, except as otherwise expressly provided for herein, the benefits of this Plan shall supplement and shall not supersede any plan or agreement between the |
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7.2 | Governing Law. The laws of the State of New York (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Plan, including, without limitation, its validity, interpretation, construction, administration and enforcement, except such matters as may be governed by the federal laws of the United States of America. |
7.3 | Designation of Forum. Any legal action or proceeding arising out of or relating to rights or benefits under this Plan shall be brought, if at all, in the United States District Court for the Southern District of New York or in any court of the State of New York sitting in New York City. |
7.4 | Binding Terms. The terms of this Plan shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, executors, administrators and successors. |
7.5 | Non-Alienation of Benefits. No Benefit under this Plan shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge. Any attempt so to anticipate, alienate, sell, transfer, assign, pledge, encumber or charge the same shall be void; nor shall any such Benefit be in any manner liable for or subject to the debts, contracts, liabilities, engagements or torts of the person entitled to such Benefit. If any person entitled to a Benefit under this Plan becomes bankrupt or attempts to anticipate, alienate, sell, transfer, assign, pledge, encumber or charge any Benefit under this Plan except as specifically provided in this Plan, then such Benefit shall, in the discretion of the Committee, cease and determine. In that event the Committee shall hold or apply the same for the Benefit of such person, his spouse, children, or other dependents, or any of them in such manner and in such proportion as the Committee may deem proper. |
7.6 | Severability. In the event any provision of this Plan shall be held illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining provisions of this Plan, and this Plan shall be construed and enforced as if such illegal or invalid provision had never been contained therein. |
7.7 | Construction. All headings preceding the text of the several Articles hereof are inserted solely for reference and shall not constitute a part of this Plan, nor affect its meaning, construction or effect. Where the context admits, words in the masculine gender shall include the feminine and neuter genders, and the singular shall mean the plural. |
7.8 | No Employment Agreement. Nothing in this Plan shall confer on any Participant the right to continued employment with the Company and, except as expressly set |
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7.9 | Section 409A Compliance. The Company intends that the Plan meet the requirements of Section 409A of the Code and the guidance issued thereunder. The Plan shall be administered, construed and interpreted in a manner consistent with that intention. In no event shall the Company have any liability or obligation with respect to taxes for which the Participant may become liable as a result of the application of Section 409A of the Code. The Plan has been administered in good faith compliance with Section 409A and the guidance issued thereunder from January 1, 2005 through December 31, 2008. |
ATTEST: | TIFFANY AND COMPANY |
By: /s/ John C. Duffy | By: /s/ Leigh M. Harlan |
Name: Leigh M. Harlan | |
Title: SVP - General Counsel, Secretary | |
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a. | Any Person or group (as defined in Rule 13d-5 under the Exchange Act) of Persons (excluding Parent or any of its Affiliates, (ii) a trustee or any fiduciary holding securities under an employee benefit plan of Parent or any |
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b. | If the individuals who, as of March 17, 2016, constitute the Parent Board (such individuals, the “Incumbent Board”) cease for any reason to constitute a majority of the Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Parent’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such person were a member of the Incumbent Board; |
c. | The consummation of a reorganization, merger, consolidation or other corporate transaction involving Parent, in each case with respect to which the stockholders of Parent immediately prior to the consummation of such transaction would not, immediately after the consummation of such transaction, own more than fifty percent (50%) of the combined voting power of the surviving or resulting Person or ultimate parent entity resulting from such transaction, as the case may be; or |
d. | Assets representing 50% or more of the consolidated assets of Parent and its subsidiaries are sold, liquidated or distributed in a transaction (or series of transactions within a twelve (12) month period), other than such a sale or disposition immediately after which such assets will be owned directly or indirectly by the stockholders of Parent in substantially the same proportions as their ownership of the common stock of Parent immediately prior to such sale or disposition. |
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(ii) | use one of the following methods of delivery, each of which for purposes of this Agreement is a writing: |
(A) | Personal delivery; |
(B) | Registered or Certified Mail, in each case, return receipt requested and postage prepaid; or |
(C) | Nationally recognized overnight courier, with all fees prepaid. |
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(a) | The grant of an “Option” entitles the Participant to purchase Shares at an Exercise Price established by the Committee. Options granted under this Section 2 may be either Incentive Stock Options or Non-Qualified Stock Options, as determined in the discretion of the Committee pursuant to Subsection 2.2. An “Incentive Stock Option” is an Option that is intended to satisfy the requirements applicable to an “incentive stock option” described in Section 422(b) of the Code. A “Non-Qualified Stock Option” is an Option that is not intended to be an “incentive stock option” as that term is described in Section 422(b) of the Code. No Incentive Stock Option shall be granted to a Ten Percent Shareholder unless the Exercise Price of that Incentive Stock Option is at least 110% of the Fair Market Value of the Shares as of the Grant Date and the Incentive Stock Option is not exercisable after the expiration of five years from the Grant Date. |
(b) | The grant of a stock appreciation right (an “SAR”) entitles the Participant to receive, in cash or Shares, value equal to all or a portion of the excess of: (a) Fair Market Value of a specified number of Shares at the time of exercise, over (b) an Exercise Price established by the Committee pursuant to Subsection 2.2. |
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(a) | The Exercise Price may be paid by ordinary check or such other form of tender as the Committee may specify. |
(b) | If permitted by the Committee, the Exercise Price for Shares purchased upon the exercise of an Option may be paid in part or in full by tendering Shares (by either actual delivery of Shares or by attestation, with such Shares valued at Fair Market Value as of the date of exercise). |
(c) | The Committee may permit a Participant to elect to pay the Exercise Price upon the exercise of an Option by irrevocably authorizing a third party to sell Shares acquired upon exercise of the Option (or a sufficient portion of such Shares) and remit to the Company a sufficient portion of the sale proceeds to pay the entire Exercise Price and any tax withholding resulting from such exercise. |
(a) | (i) Subject to the following provisions of this Subsection 4.2, the maximum number of Shares authorized for Awards under the Plan shall be 8.65 million Shares, provided that such maximum shall be reduced by one (1) Share for every one (1) Share granted under the 2005 Plan after January 31, 2014 and prior to the date of the Company’s 2014 annual meeting. Such maximum shall also be reduced by one (1) Share for every one (1) Share subject to Awards granted under the Plan. |
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(b) | Subject to adjustment under paragraph 4.2(c), the following additional maximum limitations are imposed under the Plan: (i) the aggregate maximum number of Shares that may be issued under Options intended to be Incentive Stock Options shall be One Million (1,000,000) shares; and (ii), unless the Committee expressly states that an Award to a Named Executive Employee shall not be designed to comply with the Performance Based Exception, in which case such Award shall not be counted against the limits below, the following limitations shall apply: (A) in any fiscal year of the Company, the aggregate number of shares that may be granted to any Participant pursuant to any and all Awards (including Options, SARS and Stock Awards) shall not exceed Four Hundred Thousand (400,000), except for during the first fiscal year of hire for a Participant, during which such aggregate limit shall be Eight Hundred Thousand (800,000); and (B) in any fiscal |
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(c) | If the number of outstanding Shares are increased or decreased, or are changed into or exchanged for cash, property or a different number or kind of shares or securities, or if cash, property, Shares or other securities are distributed in respect of such outstanding Shares, in each case as a result of one or more mergers, reorganizations, reclassifications, recapitalizations, stock splits, reverse stock splits, stock dividends, dividends (other than regular, quarterly dividends), or other distributions, spin-offs or the like, or if substantially all of the property and assets of the Company and its Related Companies on a consolidated basis are sold, then, unless the terms of the transaction shall provide otherwise, appropriate adjustments shall be made in the number and/or type of Shares or securities for which Awards may thereafter be granted under the Plan and for which Awards then outstanding under the Plan may thereafter be exercised. Any such adjustments in outstanding Awards shall be made without changing the aggregate Exercise Price applicable to the unexercised portions of outstanding Options or SARs. The Committee shall make such adjustments to preserve the benefits or potential benefits of the Plan and the Awards; such adjustments may include, but shall not be limited to, adjustment of: (i) the number and kind of shares which may be delivered under the Plan; (ii) the number and kind of shares subject to outstanding Awards; (iii) the Exercise Price of outstanding Options and SARs; (iv) the limits specified in Subsections 4.2(a)(i) and 4.2(b) above; and (v) any other adjustments that the Committee determines to be equitable. No right to purchase or receive fractional shares shall result from any adjustment in Options, SARs or Stock Awards pursuant to this paragraph 4.2(c). In case of any such adjustment, Shares subject to the Option, SAR or Stock Award shall be rounded up to the nearest whole Share. |
(a) | Notwithstanding any other provision of the Plan, the Company shall have no obligation to deliver any Shares under the Plan or make any other distribution of benefits under the Plan unless such delivery or distribution would comply with all applicable laws (including, without limitation, the requirements of the Securities Act of 1933, as amended) and the applicable requirements of any securities exchange or similar entity, and the Committee may impose such restrictions on any Shares acquired pursuant to the Plan as the Committee may deem advisable, including, without limitation, restrictions under applicable federal securities laws, under the requirements of any securities exchange or market upon which such Shares are then listed and/or traded, and under any blue sky or state securities laws applicable to such Shares. In the event that the Committee determines in its discretion that the registration, listing or qualification of the Shares issuable under |
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(b) | Distribution of Shares under the Plan may be effected on a non-certificated basis, to the extent not prohibited by applicable law or the applicable rule of any securities exchange. |
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(a) | Neither a Participant nor any other person shall, by reason of the Plan or any Award Agreement, acquire any right in or title to any assets, funds or property of |
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(b) | Neither the Plan nor any Award Agreement shall constitute a contract of employment, and selection as a Participant will not give any employee the right to be retained in the employ of the Company or any Related Company, nor any right or claim to any benefit under the Plan, unless such right or claim has specifically accrued under the terms of the Plan or an Award. Except as otherwise provided in the Plan, no Award under the Plan shall confer upon the holder thereof any right as a stockholder of the Company prior to the date on which the individual fulfills all conditions for receipt of such rights. |
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(a) | Subject to the provisions of the Plan, the Committee will have the authority and discretion to select from amongst Eligible Individuals those persons who shall receive Awards, to determine who is an Eligible Individual, to determine the time or time of receipt, to determine the types of Awards and the number of Shares covered by the Awards, to establish the terms, conditions, Performance Goals, restrictions, and other provisions of such Awards and Award Agreements, and (subject to the restrictions imposed by Section 6) to cancel, amend or suspend Awards. In making such Award determinations, the Committee may take into account the nature of services rendered by the Eligible Individual, the Eligible Individual’s present and potential contribution to the Company’s or a Related Company’s success and such other factors as the Committee deems relevant. |
(b) | Subject to the provisions of the Plan, the Committee will have the authority and discretion to determine the extent to which Awards under the Plan will be structured to conform to the requirements of the Performance-Based Exception and to take such action, establish such procedures, and impose such restrictions at the time Awards are granted as the Committee determines to be necessary or appropriate to conform to such requirements. |
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(c) | The Committee will have the authority and discretion to establish terms and conditions of Awards as the Committee determines to be necessary or appropriate to conform to applicable requirements or practices of jurisdictions outside the United States. |
(d) | The Committee will have the authority and discretion to interpret the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, to determine the terms and provisions of any Award Agreements, and to make all other determinations that may be necessary or advisable for the administration of the Plan. |
(e) | Any interpretation of the Plan by the Committee and any decision made by the Committee under the Plan are final and binding. |
(f) | In controlling and managing the operation and administration of the Plan, the Committee shall act by a majority of its then members, by meeting or by writing filed without a meeting. The Committee shall maintain adequate records concerning the Plan and concerning its proceedings and acts in such form and detail as the Committee may decide. |
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(a) | the Company’s consolidated net earnings; |
(b) | the Company’s consolidated earnings per share on a diluted basis; |
(c) | the Company’s consolidated net sales; |
(d) | net sales for any channel of distribution (as defined in Management’s Discussion and Analysis of Financial Condition and Results of Operations); |
(e) | the Company’s consolidated return on average assets; |
(f) | the Company’s consolidated selling, general and administrative expenses; |
(g) | the Company’s consolidated earnings from operations; |
(h) | the Company’s consolidated earnings before income taxes; |
(i) | the Company’s consolidated net cash provided by operating activities; |
(j) | the Company’s gross revenue or gross revenue growth; |
(k) | the Company’s gross profit or gross profit growth; |
(l) | the Company’s net operating profit (before or after taxes); |
(m) | return on assets, capital, invested capital, equity or sales; and |
(n) | earnings before or after taxes, interest, depreciation and/or amortization. |
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Tiffany & Co. (the “Company”) | ||
[Name of Executive] | ||
Tiffany and Company (“Tiffany”) |
A. | Participant wishes to receive Equity Awards which might be granted to Participant in the future or which have been granted to Participant on the condition that Participant executes and delivers this instrument; is willing to make the promises set forth in this instrument, and to execute and deliver this instrument, in order to be eligible to receive Equity Awards in the future and to have the benefit of Equity Awards which have been granted to Participant on the condition that Participant executes and delivers this instrument; and understands that Equity Awards may be forfeited and any Proceeds of Equity Awards may become due and payable to Tiffany if Participant breaches the covenants contained in this instrument. |
B. | If Participant is a participant or former participant in the Deferral Plan, Participant wishes to receive Excess DCRB Contributions, as defined in such Plan; wishes to execute this instrument pursuant to Section 5.1(C) of such Plan; and understands that any such Excess DCRB Contributions and Investment Fund performance (as defined in such Plan) credited to such Contributions may be forfeited pursuant to such Plan if Participant breaches the covenants contained in this instrument. |
C. | If Participant is a participant or former participant in the Excess Plan, Participant wishes to receive a Benefit, as defined in such Plan; wishes to execute this instrument pursuant to Section 3.12 of such Plan; and understands that any such Benefit may be forfeited pursuant to such Plan if Participant breaches the covenants contained in this instrument. |
D. | Participant agrees that the benefits recited above, as applicable, constitute full and fair and consideration for the covenants made in this instrument. |
(i) | Participant’s conviction or plea of no contest to a felony involving financial impropriety or a felony which would tend to subject the Company or any of its Affiliates to public criticism or materially interfere with Participant’s continued service to the Company or its Affiliate; |
(ii) | Participant’s willful and unauthorized disclosure of material Confidential Information which disclosure actually results in substantive harm to the Company’s or its Affiliate’s business or puts such business at an actual competitive disadvantage; |
(iii) | Participant’s willful failure or refusal to perform substantially all such proper and achievable directives issued by Participant’s superior (other than: (A) any such failure resulting from Participant’s incapacity due to physical or mental illness, or (B) any such refusal made by Participant in good faith because Participant believes such directives to be illegal, unethical or immoral) after a written demand for substantial performance is delivered to Participant on behalf of Company, which demand specifically identifies the manner in which Participant has not substantially performed Participant’s duties, and which performance is not substantially corrected by Participant within ten (10) days of receipt of such demand; |
(iv) | Participant’s commission of any willful act which is intended by Participant to result in his personal enrichment at the expense of the Company or any of its Affiliates, or which could reasonably be expected by him to materially injure the reputation, business or business relationships of the Company or any of its Affiliates; |
(v) | A theft, fraud or embezzlement perpetrated by Participant upon Company or any of its Affiliates. |
(i) | Any Person or group (as defined in Rule 13d-5 under the Exchange Act) of Persons (excluding Parent or any of its Affiliates, (ii) a trustee or any fiduciary holding securities under an employee benefit plan of Parent or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iv) a corporation owned, directly or indirectly by stockholders of Parent in substantially the same proportions as their ownership of Parent, or (v) any surviving or resulting entity or ultimate parent entity resulting from a reorganization, merger, consolidation or other corporate transaction referred to in clause (c) below that does not constitute a Change in Control under clause (c) below) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Parent representing thirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities entitled to vote in the election of directors of Parent; |
Non-Competition and Confidentiality Covenants March 16, 2016 | 2 |
(ii) | If the individuals who, as of March 17, 2016, constitute the Parent Board (such individuals, the “Incumbent Board”) cease for any reason to constitute a majority of the Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Parent’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such person were a member of the Incumbent Board; |
(iii) | The consummation of a reorganization, merger, consolidation or other corporate transaction involving Parent, in each case with respect to which the stockholders of Parent immediately prior to the consummation of such transaction would not, immediately after the consummation of such transaction, own more than fifty percent (50%) of the combined voting power of the surviving or resulting Person or ultimate parent entity resulting from such transaction, as the case may be; or |
(iv) | Assets representing 50% or more of the consolidated assets of Parent and its subsidiaries are sold, liquidated or distributed in a transaction (or series of transactions within a twelve (12) month period), other than such a sale or disposition immediately after which such assets will be owned directly or indirectly by the stockholders of Parent in substantially the same proportions as their ownership of the common stock of Parent immediately prior to such sale or disposition. |
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TRANSFERABLE OPTION Terms Rev. VII |
b. | if the Participant’s Date of Termination occurs by reason of death, Disability or Retirement, the two-year anniversary of such Date of Termination; |
c. | if the Participant’s Date of Termination occurs for reasons other than death, Disability, Retirement or Termination for Cause, the three month anniversary of such Date of Termination; |
d. | if the Participant's Date of Termination occurs by reason of Termination for Cause, the Date of Termination. |
a. | a bank-certified check payable to the Parent (or other type of check or draft payable to the Parent and acceptable to the Secretary) in the amount of the Exercise Price for the Shares being exercised plus any tax withholding resulting from such exercise as computed by Employer; or |
b. | a copy of directions to, or a written acknowledgment from, an Approved Broker that the Approved Broker has been directed to sell, for the account of the owner of the Option, Shares (or a sufficient portion of the Shares) acquired upon exercise of the Option, together with an undertaking by the Approved Broker to remit to the Parent a sufficient portion of the sale proceeds to pay the Exercise Price for the Shares exercised plus any tax withholding resulting from such exercise as computed by Employer. |
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(i) | Participant’s conviction or plea of nolo contendere to a felony or any other crime involving financial impropriety or which would tend to subject Employer or any of its Affiliates to public criticism or materially interfere with Participant’s continued service to Employer; |
(ii) | Participant’s willful violation of the Code of Conduct; |
(iii) | Participant’s willful failure or refusal to perform substantially all such proper and achievable directives issued by Participant’s superior (other than any such failure resulting from Participant’s incapacity due to physical or mental illness, any such actual or anticipated failure resulting from a resignation by Participant for Good Reason, or any such refusal made by Participant in good faith because Participant believes such directives to be illegal, unethical or immoral) after a written demand for substantial performance is delivered to Participant on behalf of Employer, which demand specifically identifies the manner in which Participant has not substantially performed Participant’s duties, and which performance is not substantially corrected by Participant within ten (10) days of receipt of such demand; |
(iv) | Participant’s gross negligence in the performance of Participant’s duties and responsibilities materially injurious to the Employer; |
(v) | Participant’s willful breach of any material obligation that Participant has to Parent or Employer under any written agreement that Participant has with either Parent or Employer; |
(vi) | Participant’s fraud or dishonesty with regard to Employer or any of its Affiliates; |
(vii) | Participant’s failure to reasonably cooperate in any investigation of alleged misconduct by Participant or by any other employee of Parent, Employer or any Affiliate of Parent or Employer; |
(viii) | Participant’s death; or |
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(ix) | Participant’s Disability. |
(i) | Any Person or group (as defined in Rule 13d-5 under the Exchange Act) of Persons (excluding Parent or any of its Affiliates, (ii) a trustee or any fiduciary holding securities under an employee benefit plan of Parent or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iv) a corporation owned, directly or indirectly by stockholders of Parent in substantially the same proportions as their ownership of Parent, or (v) any surviving or resulting entity or ultimate parent entity resulting from a reorganization, merger, consolidation or other corporate transaction referred to in clause (c) below that does not constitute a Change in Control under clause (c) below) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Parent representing thirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities entitled to vote in the election of directors of Parent; |
(ii) | If the individuals who, as of March 16, 2016, constitute the Parent Board (such individuals, the “Incumbent Board”) cease for any reason to constitute a majority of the Parent Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Parent’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such person were a member of the Incumbent Board; |
(iii) | The consummation of a reorganization, merger, consolidation or other corporate transaction involving Parent, in each case with respect to which the stockholders of Parent immediately prior to the consummation of such transaction would not, immediately after the consummation of such transaction, own more than fifty percent (50%) of the combined voting |
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(iv) | Assets representing 50% or more of the consolidated assets of Parent and its subsidiaries are sold, liquidated or distributed in a transaction (or series of transactions within a twelve (12) month period), other than such a sale or disposition immediately after which such assets will be owned directly or indirectly by the stockholders of Parent in substantially the same proportions as their ownership of the common stock of Parent immediately prior to such sale or disposition. |
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• | a material adverse change in Participant’s duties, authority or responsibilities; |
• | a material adverse change in Participant’s reporting responsibility; |
• | a failure of any successor to Employer or Parent (whether direct or indirect and whether by merger, acquisition, consolidation, asset sale or otherwise) to assume in writing any obligations arising out of these Terms or any other agreement between Employer or Parent and Participant; |
• | any other action or inaction that constitutes a material breach by Employer or Parent of these Terms or any other agreement between Participant and Employer (for this purpose, a “material breach” by Employer or Parent shall include any reduction in Participant’s base salary or in his target short-term incentive / annual bonus (but, for the avoidance of doubt, any actual pay-out of a short-term incentive / annual bonus for a given fiscal year which is less than the target shall not constitute Good Reason, provided that such lower pay-out is based upon the failure to meet pre-determined performance goals or a good faith determination by Employer or the Compensation Committee of Parent Board that Parent’s financial performance or Participant’s personal performance did not warrant a pay-out equal to or greater than the target short-term incentive / annual bonus)); |
• | Parent’s failure to comply with the terms of any equity award granted to or required by contract to be granted to Participant; and |
• | The relocation of the office of Employer where Participant was employed immediately prior to the Change in Control Date, to a location which is more than 50 miles away, or should Employer require Participant to be based more than 50 miles away from such office (except for required travel on the Employer’s business to an extent substantially consistent with Participant’s customary business travel obligations in the ordinary course of business prior to the Change in Control Date). |
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(i) | the dissolution or liquidation of the Parent; |
(ii) | a reorganization, merger or consolidation of the Parent with one or more Persons as a result of which the Parent goes out of existence or becomes a subsidiary of another Person; or |
(iii) | upon the acquisition of substantially all of the property or more than eighty percent (80%) of the then outstanding stock of the Parent by another Person; |
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PERFORMANCE- BASED RESTRICTED STOCK UNIT GRANT Terms, Rev. I |
(a) | The Performance Portion shall be 0% of the Stock Units if the Earnings Threshold is not attained over the Performance Period. |
(b) | Subject to reduction pursuant to subsection (c) below, if the Earnings Threshold has been attained over the Performance Period, the Performance Portion shall be 100% of the Stock Units. |
(c) | If the Earnings Threshold has been attained over the Performance Period the Committee shall, in its sole discretion, have the right to reduce the Performance Portion to 0% of the Stock Units or any percentage of the Stock Units less than 100%. The Committee may exercise such discretion on any date that occurs following the close of the Performance Period and prior to the Maturity Date. The Committee has provided guidance to Participant with respect to factors, including the Earnings Target, the Earnings Maximum and the ROA Target, that the Committee intends to apply in effecting such a reduction, but the Committee shall not be limited in its discretion to those factors. |
(a) | If the Participant’s Date of Termination occurs by reason of Retirement during any fiscal year of the Performance Period, Stock Units shall vest as provided in Section 3 above (subject to the Participant’s compliance with Section 12 and to all of the terms and conditions set forth in Section 3 above, including, without limitation, the Committee’s exercise of discretion under |
Tiffany & Co. 2014 Employee Incentive Plan Performance-Based Restricted Stock Unit Terms, Rev. I |
(b) | if the Participant’s Date of Termination occurs by reason of death or Disability within the last fiscal year of the Performance Period, Stock Units shall vest as provided in Section 3 above (subject to all of the terms and conditions thereof, including, without limitation, the Committee’s discretion in Section 3(c) as though the Participant’s Date of Termination had not occurred before the conclusion of the Performance Period; |
(c) | if the Participant’s Date of Termination occurs by reason of death or Disability within the second fiscal year of the Performance Period, 34% of Stock Units shall vest on the date of such death or Disability; |
(d) | if the Participant’s Date of Termination occurs by reason of death or Disability within the first fiscal year of the Performance Period, 17% of Stock Units shall vest on the date of such death or Disability; |
(e) | if the Participant’s Date of Termination occurs by reason of Cause, no Stock Units shall vest; |
(f) | if the Participant’s Date of Termination occurs by reason of Participant’s voluntary resignation (other than as contemplated by Section 4(a) hereof), no Stock Units shall vest; and |
(g) | if the Participant’s Date of Termination occurs at the initiative of the Participant’s employer (but not for Cause) the Committee reserves the right to vest the Stock Units as follows, but may condition such vesting upon Participant’s release of the Parent and its affiliates from all claims, Participant’s agreement to reasonable non-competition covenants or both: |
(i) | If the Date of Termination occurs in the last fiscal year of the Performance Period, the percentage of the Stock Units the Committee may elect to vest will be based on the Company’s cumulative performance during the first and second fiscal year of the Performance Period, as compared to the Earnings Threshold, Earnings Target, and Earnings Maximum expressed in the Notice of Grant. For purposes of this Section 4(g)(i), the Earnings Threshold, Earnings Target, and Earnings Maximum shall be pro-rated for the cumulative two-year period (66.67%), and applied in a manner consistent with the guidance provided by the Committee as referenced in Section 3(c) above. Achievement of the ROA Target shall not be considered as a factor in determining the number of units to vest. |
Tiffany & Co. 2014 Employee Incentive Plan Performance-Based Restricted Stock Unit Terms, Rev. I |
(ii) | If the Date of Termination occurs in the second fiscal year of the Performance Period, the percentage of the Stock Units the Committee may elect to vest will be based on the Company’s cumulative performance during the first fiscal year of the Performance Period, as compared to the Earnings Threshold, Earnings Target, and Earnings Maximum expressed in the Notice of Grant. For purposes of this Section 4(g)(ii), the Earnings Threshold, Earnings Target, and Earnings Maximum shall be pro-rated for the cumulative two-year period (33.33%), and applied in a manner consistent with the guidance provided by the Committee as referenced in Section 3(c) above. Achievement of the ROA Target shall not be considered as a factor in determining the number of units to vest. |
(a) | All Stock Units shall vest upon a Change in Control Date for a Terminating Transaction unless such Change of Control Date occurs before the start of the Performance Period in which case none of the Stock Units shall vest. |
(b) | In the event of a Change in Control that is not a Terminating Transaction, Stock Units will convert to Time-Based Restricted Stock Units as follows: |
(i) | If the Change in Control occurs in the first or second fiscal year of the Performance Period, then 55% of Stock Units shall convert to Time-Based Restricted Stock Units; |
(ii) | If the Change in Control occurs in the last fiscal year of the Performance Period, the percentage of the Target award number of Stock Units to convert to Time-Based Restricted Stock Units will be based on the Company’s cumulative performance during the first and second fiscal year of the Performance Period, as compared to the Earnings Threshold, Earnings Target, and Earnings Maximum expressed in the Notice of Grant. For purposes of this Section 5(b)(ii), the Earnings Threshold, Earnings Target, and Earnings Maximum shall be pro-rated for the cumulative two-year period (66.67%), and applied in a manner consistent with the guidance provided by the Committee as referenced in Section 3(c) above. Achievement of the ROA Target shall not be considered as a factor in determining the number of units converted to Time-Based Restricted Stock Units. |
Tiffany & Co. 2014 Employee Incentive Plan Performance-Based Restricted Stock Unit Terms, Rev. I |
(c) | The vesting of the Time-Based Restricted Stock Units converted as described in Section 5(b): |
(i) | Will be accelerated to the Date of Termination if the Participant is subject to Involuntary Termination prior to the Maturity Date. |
(ii) | Will occur on the Maturity Date, if Vesting has not otherwise been accelerated as provided above. |
(d) | For the avoidance of doubt no conversion or vesting shall occur pursuant to Sections 5(b) or 5(c) above if the Change of Control Date occurs before the start of the Performance Period. |
(e) | In the event of vesting pursuant to this Section 5, the Settlement Value of each Vested Unit shall, within thirty days after vesting, be issued and delivered to or for the account of Participant in Shares. As provided for in Section 7 below, the Parent may make such delivery to a Service Provider. |
Tiffany & Co. 2014 Employee Incentive Plan Performance-Based Restricted Stock Unit Terms, Rev. I |
Tiffany & Co. 2014 Employee Incentive Plan Performance-Based Restricted Stock Unit Terms, Rev. I |
Tiffany & Co. 2014 Employee Incentive Plan Performance-Based Restricted Stock Unit Terms, Rev. I |
(i) | Participant’s conviction or plea of nolo contendere to a felony or any other crime involving financial impropriety or which would tend to subject Employer or any of its Affiliates to public criticism or materially interfere with Participant’s continued service to Employer; |
(ii) | Participant’s willful violation of the Code of Conduct; |
(iii) | Participant’s willful failure or refusal to perform substantially all such proper and achievable directives issued by Participant’s superior (other than any such failure resulting from Participant’s incapacity due to physical or mental illness, any such actual or anticipated failure resulting from a resignation by Participant for Good Reason, or any such refusal made by Participant in good faith because Participant believes such directives to be illegal, unethical or immoral) after a written demand for substantial performance is delivered to Participant on behalf of Employer, which demand specifically identifies the manner in which Participant has not substantially performed Participant’s duties, and which performance is not substantially corrected by Participant within ten (10) days of receipt of such demand; |
(iv) | Participant’s gross negligence in the performance of Participant’s duties and responsibilities materially injurious to the Employer; |
(v) | Participant’s willful breach of any material obligation that Participant has to Parent or Employer under any written agreement that Participant has with either Parent or Employer; |
(vi) | Participant’s fraud or dishonesty with regard to Employer or any of its Affiliates; or |
(vii) | Participant’s failure to reasonably cooperate in any investigation of alleged misconduct by Participant or by any other employee of Parent, Employer or any Affiliate of Parent or Employer. |
Tiffany & Co. 2014 Employee Incentive Plan Performance-Based Restricted Stock Unit Terms, Rev. I |
(i) | Any Person or group (as defined in Rule 13d-5 under the Exchange Act) of Persons (excluding Parent or any of its Affiliates, (ii) a trustee or any fiduciary holding securities under an employee benefit plan of Parent or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iv) a corporation owned, directly or indirectly by stockholders of Parent in substantially the same proportions as their ownership of Parent, or (v) any surviving or resulting entity or ultimate parent entity resulting from a reorganization, merger, consolidation or other corporate transaction referred to in clause (c) below that does not constitute a Change in Control under clause (c) below) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Parent representing thirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities entitled to vote in the election of directors of Parent; |
(ii) | If the individuals who, as of March 16, 2016, constitute the Parent Board (such individuals, the “Incumbent Board”) cease for any reason to constitute a majority of the Parent Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Parent’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such person were a member of the Incumbent Board; |
(iii) | The consummation of a reorganization, merger, consolidation or other corporate transaction involving Parent, in each case with respect to which the stockholders of Parent immediately prior to the consummation of such transaction would not, immediately after the consummation of such transaction, own more than fifty percent (50%) of the combined voting |
Tiffany & Co. 2014 Employee Incentive Plan Performance-Based Restricted Stock Unit Terms, Rev. I |
(iv) | Assets representing 50% or more of the consolidated assets of Parent and its subsidiaries are sold, liquidated or distributed in a transaction (or series of transactions within a twelve (12) month period), other than such a sale or disposition immediately after which such assets will be owned directly or indirectly by the stockholders of Parent in substantially the same proportions as their ownership of the common stock of Parent immediately prior to such sale or disposition. |
Tiffany & Co. 2014 Employee Incentive Plan Performance-Based Restricted Stock Unit Terms, Rev. I |
(i) | a meaningful and detrimental alteration in Participant’s position or the nature or status of Participant’s responsibilities (including reporting responsibilities) from those in effect immediately before the Change in Control Date; |
(ii) | a material failure by Employer to pay Participant a bonus or incentive award commensurate with the bonus paid others at Participant’s job level (expressed as a percentage of target bonus) unless such failure is justified by clear and objective deficiencies of the business units for which Participant is responsible; |
(iii) | the relocation of the office of Employer where Participant was employed immediately prior to the Change in Control Date to a location which is more than 50 miles away or should Employer require Participant to be based more than 50 miles away from such office (except for required travel on the Employer’s business to an extent substantially consistent with Participant’s customary business travel obligations in the ordinary course of business prior to the Change in Control Date); or |
(iv) | a Substantial Change. |
Tiffany & Co. 2014 Employee Incentive Plan Performance-Based Restricted Stock Unit Terms, Rev. I |
(i) | the dissolution or liquidation of the Parent; |
(ii) | a reorganization, merger or consolidation of the Parent with one or more Persons as a result of which the Parent goes out of existence or becomes a subsidiary of another Person; or |
Tiffany & Co. 2014 Employee Incentive Plan Performance-Based Restricted Stock Unit Terms, Rev. I |
(iii) | upon the acquisition of substantially all of the property or more than eighty percent (80%) of the then outstanding stock of the Parent by another Person; |
Tiffany & Co. 2014 Employee Incentive Plan Performance-Based Restricted Stock Unit Terms, Rev. I |
RESTRICTED STOCK GRANT Terms Cliff-Vesting, Rev. I |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms, Cliff-Vesting, Rev. I | Page 2 |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms, Cliff-Vesting, Rev. I | Page 3 |
• | Participant’s conviction or plea of nolo contendere to a felony or any other crime involving moral turpitude which would tend to subject Employer, Parent or any Tiffany Affiliate to public criticism or to materially interfere with Participant’s continued service to Employer or Parent; |
• | Participant’s willful and material violation of Employer’s Business Conduct Policy - Worldwide, as it may be amended from time to time; |
• | Participant’s willful failure, or willful refusal to attempt, to perform substantially all such proper and achievable directives issued by Participant’s superior or the Parent Board (other than any such failure resulting from incapacity due to physical or mental illness, or any such refusal made in good faith because Participant believes such directives to be illegal, unethical or immoral) after a written demand for substantial performance is delivered to Participant on behalf of Employer, which demand specifically identifies the manner in which Participant has not substantially performed his duties, and which performance is not substantially corrected by Participant within ten (10) business days of receipt of such demand; |
• | Participant’s fraud or theft with regard to Parent or any Tiffany Affiliate; |
• | Participant’s willful failure to reasonably cooperate in any investigation of alleged misconduct by Participant or by any other Participant of Parent, Employer or any Tiffany Affiliate; |
• | Participant’s willful and material breach of any non-competition or confidentiality covenants that Participant has entered into with Employer; |
• | Participant’s alcoholism or illicit drug use that materially interferes with Participant’s job performance or his ability to perform his services hereunder or that has a material adverse effect on the reputation of Employer, Parent or any Tiffany Affiliate or their respective products, trademarks or goodwill. |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms, Cliff-Vesting, Rev. I | Page 4 |
(i) | Any Person or group (as defined in Rule 13d-5 under the Exchange Act) of Persons (excluding Parent or any of its Affiliates, (ii) a trustee or any fiduciary holding securities under an employee benefit plan of Parent or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iv) a corporation owned, directly or indirectly by stockholders of Parent in substantially the same proportions as their ownership of Parent, or (v) any surviving or resulting entity or ultimate parent entity resulting from a reorganization, merger, consolidation or other corporate transaction referred to in clause (c) below that does not constitute a Change in Control under clause (c) below) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Parent representing thirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities entitled to vote in the election of directors of Parent; |
(ii) | If the individuals who, as of March 16, 2016, constitute the Parent Board (such individuals, the “Incumbent Board”) cease for any reason to constitute a majority of the Parent Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Parent’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such person were a member of the Incumbent Board; |
(iii) | The consummation of a reorganization, merger, consolidation or other corporate transaction involving Parent, in each case with respect to which the stockholders of Parent immediately prior to the consummation of such transaction would not, immediately after the consummation of such transaction, own more than fifty percent (50%) of the combined voting power of the surviving or resulting Person or ultimate parent entity resulting from such transaction, as the case may be; or |
(iv) | Assets representing 50% or more of the consolidated assets of Parent and its subsidiaries are sold, liquidated or distributed in a transaction (or series of transactions within a twelve (12) month period), other than such a sale or disposition immediately after which such assets will be owned directly or indirectly by the stockholders of Parent in substantially the same proportions as their ownership of the common stock of Parent immediately prior to such sale or disposition. |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms, Cliff-Vesting, Rev. I | Page 5 |
• | a material adverse change in Participant’s duties, authority or responsibilities; |
• | a material adverse change in Participant’s reporting responsibility; |
• | a failure of any successor to Employer or Parent (whether direct or indirect and whether by merger, acquisition, consolidation, asset sale or otherwise) to assume |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms, Cliff-Vesting, Rev. I | Page 6 |
• | any other action or inaction that constitutes a material breach by Employer or Parent of these Terms or any other agreement between Participant and Employer (for this purpose, a “material breach” by Employer or Parent shall include any reduction in Participant’s base salary or in his target short-term incentive / annual bonus (but, for the avoidance of doubt, any actual pay-out of a short-term incentive / annual bonus for a given fiscal year which is less than the target shall not constitute Good Reason, provided that such lower pay-out is based upon the failure to meet pre-determined performance goals or a good faith determination by Employer or the Compensation Committee of the Parent Board that Parent’s financial performance or Participant’s personal performance did not warrant a pay-out equal to or greater than the target short-term incentive / annual bonus)); |
• | Parent’s failure to comply with the terms of any equity award granted to or required by contract to be granted to Participant; and |
• | The relocation of the office of Employer where Participant was employed immediately prior to the Change in Control Date, to a location which is more than 50 miles away, or should Employer require Participant to be based more than 50 miles away from such office (except for required travel on the Employer’s business to an extent substantially consistent with Participant’s customary business travel obligations in the ordinary course of business prior to the Change in Control Date). |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms, Cliff-Vesting, Rev. I | Page 7 |
(i) | a reorganization, merger or consolidation of the Parent with one or more Persons as a result of which the Parent goes out of existence or becomes a subsidiary of another Person; or |
(ii) | upon the acquisition of substantially all of the property or more than eighty percent (80%) of the then outstanding stock of the Parent by another Person; |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms, Cliff-Vesting, Rev. I | Page 8 |
RESTRICTED STOCK GRANT Terms Tranche-Vesting, Rev. I |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Tranche-Vesting, Rev. I Page 2 |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Tranche-Vesting, Rev. I Page 3 |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Tranche-Vesting, Rev. I Page 4 |
(i) | Participant’s conviction or plea of nolo contendere to a felony or any other crime involving financial impropriety or which would tend to subject Employer or any of its Affiliates to public criticism or materially interfere with Participant’s continued service to Employer; |
(ii) | Participant’s willful violation of the Code of Conduct; |
(iii) | Participant’s willful failure or refusal to perform substantially all such proper and achievable directives issued by Participant’s superior or the Parent Board (other than any such failure resulting from Participant’s incapacity due to physical or mental illness, any such actual or anticipated failure resulting from a resignation by Participant for Good Reason, or any such refusal made by Participant in good faith because Participant believes such directives to be illegal, unethical or immoral) after a written demand for substantial performance is delivered to Participant on behalf of Employer, which demand specifically identifies the manner in which Participant has not substantially performed Participant’s duties, and which performance is not substantially corrected by Participant within ten (10) days of receipt of such demand; |
(iv) | Participant’s gross negligence in the performance of Participant’s duties and responsibilities materially injurious to the Employer; |
(v) | Participant’s willful breach of any material obligation that Participant has to Parent or Employer under any written agreement that Participant has with either Parent or Employer; |
(vi) | Participant’s fraud or dishonesty with regard to Employer or any of its Affiliates; |
(vii) | Participant’s failure to reasonably cooperate in any investigation of alleged misconduct by Participant or by any other employee of Parent, Employer or any Affiliate of Parent or Employer; |
(viii) | Participant’s death; or |
(ix) | Participant’s Disability. |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Tranche-Vesting, Rev. I Page 5 |
(i) | Any Person or group (as defined in Rule 13d-5 under the Exchange Act) of Persons (excluding Parent or any of its Affiliates, (ii) a trustee or any fiduciary holding securities under an employee benefit plan of Parent or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iv) a corporation owned, directly or indirectly by stockholders of Parent in substantially the same proportions as their ownership of Parent, or (v) any surviving or resulting entity or ultimate parent entity resulting from a reorganization, merger, consolidation or other corporate transaction referred to in clause (c) below that does not constitute a Change in Control under clause (c) below) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Parent representing thirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities entitled to vote in the election of directors of Parent; |
(ii) | If the individuals who, as of March 16, 2016, constitute the Parent Board (such individuals, the “Incumbent Board”) cease for any reason to constitute a majority of the Parent Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Parent’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such person were a member of the Incumbent Board; |
(iii) | The consummation of a reorganization, merger, consolidation or other corporate transaction involving Parent, in each case with respect to which the stockholders of Parent immediately prior to the consummation of such transaction would not, immediately after the consummation of such transaction, own more than fifty percent (50%) of the combined voting power of the surviving or resulting Person or ultimate parent entity resulting from such transaction, as the case may be; or |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Tranche-Vesting, Rev. I Page 6 |
(iv) | Assets representing 50% or more of the consolidated assets of Parent and its subsidiaries are sold, liquidated or distributed in a transaction (or series of transactions within a twelve (12) month period), other than such a sale or disposition immediately after which such assets will be owned directly or indirectly by the stockholders of Parent in substantially the same proportions as their ownership of the common stock of Parent immediately prior to such sale or disposition. |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Tranche-Vesting, Rev. I Page 7 |
• | a material adverse change in Participant’s duties, authority or responsibilities; |
• | a material adverse change in Participant’s reporting responsibility; |
• | a failure of any successor to Employer or Parent (whether direct or indirect and whether by merger, acquisition, consolidation, asset sale or otherwise) to assume in writing any obligations arising out of these Terms or any other agreement between Employer or Parent and Participant; |
• | any other action or inaction that constitutes a material breach by Employer or Parent of these Terms or any other agreement between Participant and Employer (for this purpose, a “material breach” by Employer or Parent shall include any reduction in Participant’s base salary or in his target short-term incentive / annual bonus (but, for the avoidance of doubt, any actual pay-out of a short-term incentive / annual bonus for a given fiscal year which is less than the target shall not constitute Good Reason, provided that such lower pay-out is based upon the failure to meet pre-determined performance goals or a good faith determination by Employer or the Compensation Committee of the Parent Board that Parent’s financial performance or Participant’s personal performance did not warrant a pay-out equal to or greater than the target short-term incentive / annual bonus)); |
• | Parent’s failure to comply with the terms of any equity award granted to or required by contract to be granted to Participant; and |
• | The relocation of the office of Employer where Participant was employed immediately prior to the Change in Control Date, to a location which is more than 50 miles away, or should Employer require Participant to be based more than 50 miles away from such office (except for required travel on the Employer’s business to an extent substantially consistent with Participant’s customary business travel obligations in the ordinary course of business prior to the Change in Control Date). |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Tranche-Vesting, Rev. I Page 8 |
(i) | the dissolution or liquidation of the Parent; |
(ii) | a reorganization, merger or consolidation of the Parent with one or more Persons as a result of which the Parent goes out of existence or becomes a subsidiary of another Person; or |
(iii) | upon the acquisition of substantially all of the property or more than eighty percent (80%) of the then outstanding stock of the Parent by another Person; |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Tranche-Vesting, Rev. I Page 9 |
RESTRICTED STOCK GRANT Terms Standard Time- Vesting, Rev. I |
Maturity Dates as of the following anniversary of the Grant Date: | The Grant shall mature with the respect to the following percentage (“installment”) of the Stock Units: |
One-year anniversary | 25% |
Two-year anniversary | 25% |
Three-year anniversary | 25% |
Four-year anniversary | 25% |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Standard Time-Vesting, Rev. I | Page 2 |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Standard Time-Vesting, Rev. I | Page 3 |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Standard Time-Vesting, Rev. I | Page 4 |
(i) | Participant’s conviction or plea of nolo contendere to a felony or any other crime involving financial impropriety or which would tend to subject Employer or any of its Affiliates to public criticism or materially interfere with Participant’s continued service to Employer; |
(ii) | Participant’s willful violation of the Code of Conduct; |
(iii) | Participant’s willful failure or refusal to perform substantially all such proper and achievable directives issued by Participant’s superior (other than any such failure resulting from Participant’s incapacity due to physical or mental illness, any such actual or anticipated failure resulting from a resignation by Participant for Good Reason, or any such refusal made by Participant in good faith because Participant believes such directives to be illegal, unethical or immoral) after a written demand for substantial performance is delivered to Participant on behalf of Employer, which demand specifically identifies the manner in which Participant has not substantially performed Participant’s duties, and which performance is not substantially corrected by Participant within ten (10) days of receipt of such demand; |
(iv) | Participant’s gross negligence in the performance of Participant’s duties and responsibilities materially injurious to the Employer; |
(v) | Participant’s willful breach of any material obligation that Participant has to Parent or Employer under any written agreement that Participant has with either Parent or Employer; |
(vi) | Participant’s fraud or dishonesty with regard to Employer or any of its Affiliates; |
(vii) | Participant’s failure to reasonably cooperate in any investigation of alleged misconduct by Participant or by any other employee of Parent, Employer or any Affiliate of Parent or Employer; |
(viii) | Participant’s death; or |
(ix) | Participant’s Disability. |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Standard Time-Vesting, Rev. I | Page 5 |
(i) | Any Person or group (as defined in Rule 13d-5 under the Exchange Act) of Persons (excluding Parent or any of its Affiliates, (ii) a trustee or any fiduciary holding securities under an employee benefit plan of Parent or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iv) a corporation owned, directly or indirectly by stockholders of Parent in substantially the same proportions as their ownership of Parent, or (v) any surviving or resulting entity or ultimate parent entity resulting from a reorganization, merger, consolidation or other corporate transaction referred to in clause (c) below that does not constitute a Change in Control under clause (c) below) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Parent representing thirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities entitled to vote in the election of directors of Parent; |
(ii) | If the individuals who, as of March 16, 2016, constitute the Parent Board (such individuals, the “Incumbent Board”) cease for any reason to constitute a majority of the Parent Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Parent’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such person were a member of the Incumbent Board; |
(iii) | The consummation of a reorganization, merger, consolidation or other corporate transaction involving Parent, in each case with respect to which the stockholders of Parent immediately prior to the consummation of such transaction would not, immediately after the consummation of such transaction, own more than fifty percent (50%) of the combined voting power of the surviving or resulting Person or ultimate parent entity resulting from such transaction, as the case may be; or |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Standard Time-Vesting, Rev. I | Page 6 |
(iv) | Assets representing 50% or more of the consolidated assets of Parent and its subsidiaries are sold, liquidated or distributed in a transaction (or series of transactions within a twelve (12) month period), other than such a sale or disposition immediately after which such assets will be owned directly or indirectly by the stockholders of Parent in substantially the same proportions as their ownership of the common stock of Parent immediately prior to such sale or disposition. |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Standard Time-Vesting, Rev. I | Page 7 |
• | a material adverse change in Participant’s duties, authority or responsibilities; |
• | a material adverse change in Participant’s reporting responsibility; |
• | a failure of any successor to Employer or Parent (whether direct or indirect and whether by merger, acquisition, consolidation, asset sale or otherwise) to assume in writing any obligations arising out of these Terms or any other agreement between Employer or Parent and Participant; |
• | any other action or inaction that constitutes a material breach by Employer or Parent of these Terms or any other agreement between Participant and Employer (for this purpose, a “material breach” by Employer or Parent shall include any reduction in Participant’s base salary or in his target short-term incentive / annual bonus (but, for the avoidance of doubt, any actual pay-out of a short-term incentive / annual bonus for a given fiscal year which is less than the target shall not constitute Good Reason, provided that such lower pay-out is based upon the failure to meet pre-determined performance goals or a good faith determination by Employer or the Compensation Committee of Parent Board that Parent’s financial performance or Participant’s personal performance did not warrant a pay-out equal to or greater than the target short-term incentive / annual bonus)); |
• | Parent’s failure to comply with the terms of any equity award granted to or required by contract to be granted to Participant; and |
• | The relocation of the office of Employer where Participant was employed immediately prior to the Change in Control Date, to a location which is more than 50 miles away, or should Employer require Participant to be based more than 50 miles away from such office (except for required travel on the Employer’s business to an extent substantially consistent with Participant’s customary business travel obligations in the ordinary course of business prior to the Change in Control Date). |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Standard Time-Vesting, Rev. I | Page 8 |
(i) | the dissolution or liquidation of the Parent; |
(ii) | a reorganization, merger or consolidation of the Parent with one or more Persons as a result of which the Parent goes out of existence or becomes a subsidiary of another Person; or |
(iii) | upon the acquisition of substantially all of the property or more than eighty percent (80%) of the then outstanding stock of the Parent by another Person; |
Tiffany & Co. 2014 Employee Incentive Plan Restricted Stock Grant Terms - Standard Time-Vesting, Rev. I | Page 9 |
(A) | at any time you are not the [insert basic description of Executive's job] of the Successor Entity or the Controlling Entity; |
(B) | any similar material adverse change on or after the Change in Control Date in your position or reporting responsibilities. |
(a) | your Earned Compensation; and |
(b) | subject to Section 8 below, a severance payment equal to the sum of (i) two times your Reference Salary and (ii) two times your Reference Bonus. |
(i) | your claim to that effect is communicated by you to Employer in writing within the lesser of (a) sixty (60) days of the event alleged by you to constitute Good Reason and (b) that number of days remaining in the one-year period following the Change in Control date; and |
(ii) | such event is not corrected by Employer or Parent in a manner which is reasonably satisfactory to you (including full retroactive correction with respect to any monetary matter) within thirty (30) days of the Employer's receipt of such written notice from you. For the avoidance of doubt, you will be required to remain in employment during the aforesaid thirty-day cure period. |
Retention Agreement, Form Effective as of March 16, 2016 | 2 |
(a) | Assumption by Successor. Parent and Employer will each require their respective successors (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of either, to expressly assume and to agree to perform this Agreement for your benefit in the same manner and to the same extent that the Parent or the Employer, as the case may be, would be required to perform it if no such succession had taken place; provided, however, that no such assumption shall relieve either the Parent or the Employer of its obligations hereunder, and no failure to expressly assume and agree to perform this Agreement shall relieve any successor of its obligations under this Agreement by operation of law. |
(b) | Enforceability; Beneficiaries. This Agreement shall be binding upon, inure to the benefit of and be enforceable by you (and your personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees) and the Parent and Employer and any Person(s) which succeeds to substantially all of the business or assets of the Parent or Employer, whether by means of merger, consolidation, acquisition of all or substantially all of the assets of the Parent or Employer or otherwise, including, without limitation, as a result of a Change in Control or by operation of law. |
(c) | Joint and Several Liability. Parent shall be jointly and severally liable with Employer for all Employer's obligations hereunder and Employer shall be jointly and severally liable with Parent for all Parent's obligations hereunder. |
Retention Agreement, Form Effective as of March 16, 2016 | 3 |
(a) | Amendments, Waivers, Etc. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing, No waiver by either party hereto any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provision or conditions at the same or at any later or subsequent time. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter here have been made by either party which are not expressly set forth in this Agreement and this Agreement shall supersede all prior agreements, negotiations, correspondence, undertakings and communications of the parties, oral or written, with respect to the subject matter hereof. Without limiting the generality of the foregoing, this Agreement supersedes all prior Retention Agreements between the parties, it being understood and agreed that any such prior Retention Agreement shall be deemed voluntarily surrendered by you in exchange for this Agreement. Parent, acting through the Compensation Committee of the Parent Board, reserves the unilateral right to add additional events that shall constitute a Change in Control to reflect changing techniques for effecting corporate changes in control; such right may not be exercised after the occurrence of such an event. |
(b) | Validity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. |
(c) | Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. |
(d) | No Contract of Employment. Nothing in this Agreement shall be construed as giving you any right to be retained in the employ of Employer or Parent nor shall it affect the terms and conditions of your employment with Employer prior to the commencement of the Term hereof. Failing the occurrence of a Change in Control Date your employment shall continue to be "at will," meaning that either you or Employer may terminate your employment with or without cause, for any reason or no reason, with or without notice. |
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(e) | Withholding. Amounts paid to you hereunder shall be subject to all applicable federal, state and local withholding taxes. |
(f) | Source of Payments. All payments provided under this Agreement, other than payments made pursuant to a Benefit Plan which provides otherwise, shall be paid in cash from the general funds of Employer or Parent, and no special or separate fund shall be established, and no other segregation of assets made, to assure payment. You will have no right, title or interest whatsoever in or to any investments which Employer or Parent may make to aid it in meeting its obligations hereunder. To the extent that any person acquires a right to receive payments from Employer or Parent hereunder, such right shall be no greater than the right of an unsecured creditor of Parent or Employer, as the case may be. |
(g) | Headings. The headings contained in this Agreement are intended solely for convenience of reference and shall not affect the rights of the parties to this Agreement. |
(h) | Governing Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of New York applicable to contracts entered into and to be performed in this State. |
[Name of Executive] |
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a. | your conviction or plea of nolo contendere to a felony or any other crime involving financial impropriety or which would tend to subject Employer or any of its Affiliates to public criticism or materially interfere with your continued service to Employer; |
b. | your willful violation of the Code of Conduct; |
c. | your willful failure or refusal to perform substantially all such proper and achievable directives issued by your superior (other than any such failure resulting from your incapacity due to physical or mental illness, any such actual or anticipated failure resulting from a resignation by you for Good Reason, or any such refusal made by you in good faith because you believe such directives to be illegal, unethical or immoral) after a written demand for substantial performance is delivered to you on behalf of Employer, which demand specifically identifies the manner in which you have not substantially performed your duties, and which performance is not substantially corrected by you within ten (10) days of receipt of such demand; |
d. | your gross negligence in the performance of your duties and responsibilities materially injurious to the Employer; |
e. | your willful breach of any material obligation that you have to Parent or Employer under any written agreement that you have with either Parent or Employer; |
f. | your fraud or dishonesty with regard to Employer or any of its Affiliates; |
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g. | your failure to reasonably cooperate in any investigation of alleged misconduct by you or by any other employee of Parent, Employer or any affiliate of Parent or Employer; |
h. | your death; or |
i. | your Disability. |
a. | Any Person or group (as defined in Rule 13d-5 under the Exchange Act) of Persons (excluding Parent or any of its Affiliates, (ii) a trustee or any fiduciary holding securities under an employee benefit plan of Parent or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iv) a corporation owned, directly or indirectly by stockholders of Parent in substantially the same proportions as their ownership of Parent, or (v) any surviving or resulting entity or ultimate parent entity resulting from a reorganization, merger, consolidation or other corporate transaction referred to in clause (c) below that does not constitute a Change in Control under clause (c) below) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Parent representing thirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities entitled to vote in the election of directors of Parent; |
b. | If the individuals who, as of the date of this Agreement, constitute the Parent Board (such individuals, the “Incumbent Board”) cease for any reason to constitute a majority of the Board, provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Parent’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such person were a member of the Incumbent Board; |
c. | The consummation of a reorganization, merger, consolidation or other corporate transaction involving Parent, in each case with respect to which the stockholders of |
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d. | Assets representing 50% or more of the consolidated assets of Parent and its subsidiaries are sold, liquidated or distributed in a transaction (or series of transactions within a twelve (12) month period), other than such a sale or disposition immediately after which such assets will be owned directly or indirectly by the stockholders of Parent in substantially the same proportions as their ownership of the common stock of Parent immediately prior to such sale or disposition. |
a. | if your employment is terminated for Disability, thirty (30) days after a Notice of Termination is given (provided that you shall not have returned to the full-time performance of your duties during such thirty (30) day period); |
b. | if your employment is terminated by Employer in an Involuntary Termination, five (5) days after the date the Notice of Termination is received by you; |
c. | if your employment is terminated by Employer for Cause (other than Disability), the later of the date specified in the Notice of Termination or ten (10) days following the date such Notice is received by you; |
d. | if you resign and specify Good Reason, thirty (30) days after the date your Notice of Termination is received by Employer unless Employer has corrected the matter as provided for in Section 4(c); and |
Retention Agreement, Form Effective as of March 16, 2016 | 8 |
e. | if you resign and fail to specify Good Reason, the date set forth in your Notice of Termination, which shall be no earlier than ten (10) days after the date such notice is received by Employer. |
a. | any earned but unpaid base salary through your Date of Termination at the rate in effect at the time of the Notice of Termination and any earned bonus or incentive award for any completed fiscal year that remains unpaid; |
b. | all unused vacation time which you may have accrued as of your Date of Termination; and |
c. | a portion of your Reference Bonus pro-rated for your service during the fiscal year in which your Involuntary Termination occurs, calculated on the assumption that all performance targets (including your individual performance targets and sales and earnings targets applicable to the Employer and/or to the Successor Entity) have been or will be achieved. |
a. | a meaningful and detrimental alteration in your position or the nature or status of your responsibilities (including your reporting responsibilities) from those in effect immediately before the Change in Control Date; |
b. | a material failure by Employer to pay you a bonus or incentive award commensurate with the bonus paid other key executives of Employer at your level (expressed as a percentage of your target bonus) unless such failure is justified by |
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c. | the relocation of the office of Employer where you were employed immediately prior to the Change in Control Date to a location which is more than 50 miles away or should Employer require you to be based more than 50 miles away from such office (except for required travel on the Employer's business to an extent substantially consistent with your customary business travel obligations in the ordinary course of business prior to the Change in Control Date); |
d. | the failure of Employer and Parent to obtain an express agreement reasonably satisfactory to you from their successors, if any, to assume and agree to perform this Agreement, as contemplated in Section 8(a) of the Agreement; or |
e. | a material breach by Employer or Parent of this Agreement. |
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1. | They must always promote honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest in personal and professional relationships. |
2. | They must not use their Company position for personal gain such as by soliciting or accepting for personal benefit business opportunities that might otherwise accrue to the benefit of the Company. |
3. | They must comply with applicable law. |
4. | Consistent with their obligations under applicable law, they must ensure the Company provides full, fair, accurate, timely, and understandable disclosure in reports and documents that it files with or submits to the U.S. Securities and Exchange Commission and in other public communications. |
5. | They must act in good faith, responsibly, with due care, competence and diligence, without misrepresenting material facts or allowing their independent judgment to be subordinated. |
6. | They must respect the confidentiality of information acquired in the course of their duties except when expressly authorized by Company policy or legally obligated to disclose such information. Confidential information acquired in the course of their duties must not to be used for personal advantage. They are not prohibited, however, from providing information to or before the U.S. Securities and Exchange Commission, any other regulatory, administrative or governmental enforcement authority, or any self-regulatory organization. |
7. | They must responsibly use and control all Company assets and resources employed by or entrusted to them. |
8. | They must promptly report to the attention of the VP - Internal Audit, CFO, CEO and Audit Committee of the Board of Directors (through its chairperson) any violations of this Code or any suspected illegal, unethical or otherwise dishonest activities that could, in each case, reasonably be expected to have a material impact on the Company or its business, financial condition, results of operations or prospects. |
9. | They must conform to policies established by the Board of Directors with respect to trading in the Company’s securities. |
10. | They must not take any action to influence, coerce, manipulate, or mislead any auditor engaged in the performance of an audit for the purpose of rendering the financial statements materially misleading. |
11. | Any waiver of this code of ethics may only be made by the Board of Directors. |