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Delaware
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1-9494
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13-3228013
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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200 Fifth Avenue, New York, New York
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10010
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(Address of principal executive offices)
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(Zip Code)
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o
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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o
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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o
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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o
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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Emerging growth company
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o
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
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o
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Item 5.03
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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Item 8.01
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Other Events.
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Item 9.01
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Financial Statements and Exhibits.
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(d)
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Exhibits
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3.2
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Restated By-Laws of Registrant, as last amended January 18, 2018.
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10.26q
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Terms of Restricted Stock Unit Grant (Non-Transferable) under Registrant's 2014 Employee Incentive Plan, as revised January 17, 2018.
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10.26r
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Terms of Performance-Based Restricted Stock Unit Grant (Non-Transferable) under Registrant's 2014 Employee Incentive Plan, as revised January 17, 2018.
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10.26s
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Terms of Stock Option Award (Transferable Non-Qualified Option) under Registrant's 2014 Employee Incentive Plan, as revised January 17, 2018.
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TIFFANY & CO.
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(Registrant)
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By: /s/ Leigh M. Harlan
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Leigh M. Harlan
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Senior Vice President, Secretary
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and General Counsel
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Date: January 19, 2018
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Item 9.01
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Financial Statements and Exhibits
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(d)
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Exhibits
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Restated By-Laws of Registrant, as last amended January 18, 2018.
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Terms of Restricted Stock Unit Grant (Non-Transferable) under Registrant's 2014 Employee Incentive Plan, as revised January 17, 2018.
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Terms of Performance-Based Restricted Stock Unit Grant (Non-Transferable) under Registrant's 2014 Employee Incentive Plan, as revised January 17, 2018.
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Terms of Stock Option Award (Transferable Non-Qualified Option) under Registrant's 2014 Employee Incentive Plan, as revised January 17, 2018.
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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Page
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2
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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Page
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3
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i.
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as to each person the stockholder proposes to nominate for election or re-election as a director, (1) all information relating to such person that is required to be disclosed in accordance with Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), whether in a solicitation of proxies for the election of directors in an election contest or otherwise, and such other information as may be required by the Corporation pursuant to any policy of the Corporation governing the selection of directors and publicly available (whether on the Corporation’s website or otherwise) as of the date of such notice; (2) such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected; (3) a statement whether such person, if elected, intends to tender any advance resignation notice(s) requested by the Board of Directors in connection with subsequent elections, such advance resignation to be contingent upon the nominee’s failure to receive a majority of the votes cast by stockholders and acceptance of such resignation by the Board of Directors; and (4) a description of all agreements, arrangements or understandings between the stockholder or any beneficial owner on whose behalf such nomination is made, or their respective affiliates, and each nominee or any other person or persons (naming such person or persons) in connection with the making of such nomination or nominations;
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ii.
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as to any other business the stockholder proposes to bring before the meeting, (1) a brief description of such business; (2) the text of the proposal to be voted on by stockholders (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend these By-laws, the language of the proposed amendment); (3) the reasons for conducting such business at the meeting; and (4) a description of any direct or indirect material interest of the stockholder or of any beneficial owner on whose behalf the proposal is made, or their respective affiliates, in such business, and all agreements, arrangements and understandings between such stockholder or any such beneficial owner or their respective affiliates and any other person or persons (naming such person or persons) in connection with the proposal of such business;
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iii.
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as to the stockholder giving the notice and each beneficial owner, if any, on whose behalf the business is proposed or nomination is made (each, a “Party”), (1) the name and address of such Party (in the case of each stockholder, as they appear on the Corporation’s books and records); (2) the
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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4
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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Page
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5
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iv.
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an undertaking by each Party to notify the Corporation in writing of any change in the information previously disclosed pursuant to provisions (i), (ii) and (iii) of this paragraph B as of the record date for determining stockholders entitled to receive notice of such meeting and as of the date that is 15 days prior to the meeting or any adjournment or postponement thereof, by written notice received by the Secretary at the principal executive offices of the Corporation not later than 5 days following such record date and not later than 10 days prior to the date for the meeting or any adjournment or postponement thereof, and thereafter by written notice so given and received within two business days of any change in such information (and, in any event, by the close of business on the day preceding the meeting date).
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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6
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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7
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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8
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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Page
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9
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(1)
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The maximum aggregate number of Stockholder Nominees nominated by Eligible Stockholders that will be included in the Corporation’s proxy materials with respect to an annual meeting of stockholders shall not exceed the greater of (i) two or (ii) 20% of the number of directors in office as of the last day on which a Nomination Notice may be delivered pursuant to this Section 1.10, or if such amount is not a whole number, the closest whole number below 20%; provided, however, that this number shall be reduced by (1) any Stockholder Nominee whose name was submitted by an Eligible Stockholder for inclusion in the Corporation’s proxy materials pursuant to this Section 1.10 but was subsequently withdrawn or was subsequently nominated by the Board of Directors for election and (2) the number of incumbent directors who were Stockholder Nominees at any of the preceding two annual meetings (including any individual covered under clause (1) above) and who have been nominated for election at the upcoming annual meeting by the Board of Directors. In the event that one or more vacancies for any reason occurs on the Board of Directors after the deadline set forth in paragraph C of this Section 1.10 but before the date of the annual meeting and the Board of Directors resolves to reduce the size of the Board of Directors in connection therewith, the maximum number shall be calculated based on the number of directors in office as so reduced.
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(2)
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Any Eligible Stockholder submitting more than one Stockholder Nominee for inclusion in the Corporation’s proxy statement pursuant to this Section 1.10 shall rank such Stockholder Nominees based on the order in which the Eligible Stockholder desires such Stockholder Nominees to be selected for inclusion in the Corporation’s proxy statement. In the event that the number of Stockholder Nominees submitted by Eligible Stockholders pursuant to this Section 1.10 exceeds the maximum number of nominees provided for pursuant to paragraph D(1) of this Section 1.10, the highest ranking Stockholder Nominee who meets the requirements of this Section 1.10 of each Eligible Stockholder will be selected for inclusion in the Corporation’s proxy statement until the maximum number is reached, going in order by the number (largest to smallest) of shares of stock of the Corporation each Eligible Stockholder disclosed as Owned (as defined below) in its respective Nomination Notice submitted to the Corporation pursuant to this Section 1.10. If the maximum number is not reached after the highest ranking Stockholder Nominee who meets the requirements of this Section 1.10 of each Eligible Stockholder has been selected, this process will continue with the next highest ranked nominee as many times as necessary, following the same order each time, until the maximum number is reached.
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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Page
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10
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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Page
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11
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(1)
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one or more written statements from the Eligible Stockholder (and from each other record holder of the shares and intermediary through which the shares are or have been held during the requisite three-year holding period) specifying, as of a date within seven days prior to the date of the Nomination Notice, the number of shares of stock of the Corporation that the Eligible Stockholder Owns, and has continuously Owned for three years preceding such date, and the Eligible Stockholder’s agreement to provide, within five business days after the later of the record date for the annual meeting and the date on which the record date is first publicly disclosed by the Corporation, written statements from the Eligible Stockholder, record holder and intermediaries verifying the Eligible Stockholder’s continuous Ownership of the Required Shares through the record date; provided that statements meeting the requirements of Schedule 14N will be deemed to fulfill this requirement;
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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Page
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12
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(2)
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t
he written consent of each Stockholder Nominee to being named in the proxy statement as a nominee and to serving as a director if elected, together with the information and representations that would be required to be set forth in a stockholder’s notice of a nomination of any person for election or re-election as a director of the Corporation pursuant to Section 1.08;
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(3)
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a copy of the Schedule 14N that has been or is concurrently being filed by such Eligible Stockholder with the Securities and Exchange Commission as required by Rule 14a-18 under the Exchange Act, as such rule may be amended;
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(4)
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the details of any relationship that existed within the past three years and that would have been required to have been described pursuant to Item 6(e) of Schedule 14N (or any successor item) if it existed on the date of submission of Schedule 14N;
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(5)
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a representation and undertaking (i) that the Eligible Stockholder (1) did not acquire, and is not holding, securities of the Corporation for the purpose or with the effect of influencing or changing control of the Corporation; (2) has not nominated and will not nominate for election to the Board of Directors at the annual meeting any person other than the Stockholder Nominee(s) being nominated by it pursuant to this Section 1.10, (3) has not engaged and will not engage in a, and has not and will not be a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a director at the annual meeting other than its Stockholder Nominee(s) or a nominee of the Board of Directors, (4) has not distributed and will not distribute to any stockholder any form of proxy for the annual meeting other than the form distributed by the Corporation and (5) will Own the Required Shares through the date of the annual meeting of stockholders; and (ii) that the facts, statements and other information in all communications with the Corporation and its stockholders are and will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading;
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(6)
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in the case of a nomination by a group of stockholders that together is an Eligible Stockholder, the designation by all group members of one group member that is authorized to receive communications, notices and inquiries from the Corporation and to act on behalf of all such members with respect to the nomination and all matters related thereto, including any withdrawal of the nomination;
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(7)
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an undertaking that the Eligible Stockholder agrees to (i) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Stockholder’s communications with the stockholders of the Corporation or out
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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Page
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13
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(8)
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in the case of a Qualifying Fund whose share Ownership is counted for purposes of qualifying as an Eligible Stockholder, documentation from the Qualifying Fund reasonably satisfactory to the Board of Directors that demonstrates that it meets the requirements of a Qualifying Fund set forth in paragraph F of this Section.
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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14
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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15
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16
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17
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18
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19
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20
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21
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22
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23
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24
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Restated By-Laws: Tiffany & Co. (DE) 01/18/18
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25
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(d)
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In all circumstances, a Stock Unit that fails to vest on or before the Maturity Date shall be null and void and shall not confer upon Participant any rights, including any right to any Share.
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(a)
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Generally.
Upon Participant’s Termination Date, any unvested Stock Units shall be deemed to have “expired,” unless otherwise provided below. An expired Stock Unit shall be void and shall not confer rights to Shares or Dividend Equivalent Units or any other rights.
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(b)
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Termination due to death or Disability.
If Participant’s Termination Date occurs by reason of death or Disability, all unvested, unexpired Installments will vest on the Termination Date.
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(c)
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Effect of Change in Control
. Upon the earlier of (i) the date of any Change in Control, if such Change in Control effects a Terminating Transaction, or (ii) Participant’s Involuntary Termination, all unvested, unexpired Installments shall vest.
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Tiffany & Co. 2014 Employee Incentive Plan
Restricted Stock Unit Grant Terms, January 17, 2018
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Page
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2
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(a)
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All Shares shall be subject to the restrictions on sale, encumbrance and other disposition provided by federal, state or foreign law. If at any time Parent determines, in its discretion, that (i) the listing, registration, or qualification of the Stock Units or Shares is required by any securities exchange or any applicable federal, state or foreign law (including any tax code and related regulations) or (ii) the consent or approval of any governmental regulatory authority is necessary or desirable, in either case as a condition to the issuance of Shares to Participant (or his or her beneficiary or estate) hereunder, then such issuance will not occur unless and until such listing, registration, qualification, consent or approval has been completed, effected or obtained, free of any conditions not acceptable to Parent. For the avoidance of doubt, Parent shall be under no obligation to effect such listing, registration, qualification, consent or approval. Further, in the event Parent determines that the delivery of any Shares will violate applicable law, Parent may defer delivery until such date as such delivery will no longer cause such violation, as determined in Parent’s opinion. Parent further reserves the right to impose other requirements or conditions on the settlement of the Stock Units or the issuance or delivery of any Shares delivered in connection with the Stock Units to the extent Parent determines such restrictions or conditions are necessary for legal or administrative reasons, and to require Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
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Tiffany & Co. 2014 Employee Incentive Plan
Restricted Stock Unit Grant Terms, January 17, 2018
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3
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Tiffany & Co. 2014 Employee Incentive Plan
Restricted Stock Unit Grant Terms, January 17, 2018
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Page
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4
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Tiffany & Co. 2014 Employee Incentive Plan
Restricted Stock Unit Grant Terms, January 17, 2018
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Page
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5
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(i)
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Participant’s conviction or plea of guilty or
nolo contendere
to a felony or any other crime involving financial impropriety or moral turpitude which would tend to subject Parent or any Affiliate of Parent to public criticism or to materially interfere with Participant’s continued employment;
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(ii)
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Participant's willful and material violation of (A) Parent’s Business Conduct Policy - Worldwide or (B) if applicable, Parent’s Code of Business and Ethical Conduct for Directors, the Chief Executive Officer, the Chief Financial Officer and All Other Officers of the Company, in each case as such policy may be amended from time to time;
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(iii)
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Participant’s willful failure, or willful refusal, to substantially perform or attempt to substantially perform his or her duties or all such proper and achievable directives issued by Participant’s manager 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), provided Participant receives written notice demanding substantial performance and fails to comply within ten (10) business days of such demand;
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(iv)
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Participant’s gross negligence in the performance of Participant’s duties and responsibilities that is materially injurious to Parent or any Affiliate of Parent;
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(v)
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Participant’s willful breach of any material obligation that Participant has to Parent or any Affiliate of Parent under any written agreement with Parent or such Affiliate;
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(vi)
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Participant's fraud, dishonesty, or theft with regard to Parent or any Affiliate of Parent; and
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(vii)
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Participant’s failure to reasonably cooperate in any investigation of alleged misconduct by Participant, or by any other employee of Parent or any Affiliate of Parent.
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(i)
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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
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Tiffany & Co. 2014 Employee Incentive Plan
Restricted Stock Unit Grant Terms, January 17, 2018
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Page
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6
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(ii)
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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 such date 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;
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(iii)
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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
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(iv)
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Assets representing fifty percent (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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Tiffany & Co. 2014 Employee Incentive Plan
Restricted Stock Unit Grant Terms, January 17, 2018
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Page
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7
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(i)
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a material adverse change in Participant’s duties, authority, responsibilities or reporting responsibility;
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(ii)
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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 any agreement between Employer or Parent and Participant;
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(iii)
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any other action or inaction that constitutes a material breach by Employer or Parent of any agreement between Participant and Employer. For the avoidance of doubt, any payout of a short-term incentive or annual bonus for a given fiscal year which is less than the target shall not constitute Good Reason, provided that such lower payout is based upon the failure to meet pre-determined performance goals or a good faith determination by Employer or the Committee of Parent Board that Parent’s financial performance or Participant’s personal performance did not warrant a greater payout;
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(iv)
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Parent’s failure to comply with the terms of any equity award granted to or required by contract to be granted to Participant; or
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(v)
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the relocation of Employer’s office where Participant was based immediately prior to a Change in Control to a location more than fifty (50) miles away, or should Employer require Participant to be based more than fifty (50) miles away from such office (except for required travel on Employer’s business to an extent substantially consistent with Participant’s customary business travel obligations in the ordinary course of business prior to a Change in Control).
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Tiffany & Co. 2014 Employee Incentive Plan
Restricted Stock Unit Grant Terms, January 17, 2018
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8
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Tiffany & Co. 2014 Employee Incentive Plan
Restricted Stock Unit Grant Terms, January 17, 2018
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Page
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9
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Tiffany & Co. 2014 Employee Incentive Plan
Restricted Stock Unit Grant Terms, January 17, 2018
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Page
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10
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1.
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Introduction and Terms of Grant
. Participant has been granted (the “Grant”) Stock Units that shall be settled by the issuance and delivery of shares of Common Stock (“Shares”). The Grant has been made under the Plan by the Committee. The name of “Participant,” the “Grant Date,” the number of Stock Units granted, the “Performance Period,” the “Earnings Threshold,” “Earnings Target,” and “Earnings Maximum,” and the “Operating Cash Flow Threshold,” “Operating Cash Flow Target” and “Operating Cash Flow Maximum” are stated in the attached “Notice of Grant.” The other terms and conditions of the Grant are stated in this document and in the Plan. As used herein, “Stock Units” refers to Stock Units included in this Grant, and not to other stock units that may have been or may be granted. If Participant has the title of Vice President or a more senior title, this Grant will be void unless Participant executes and delivers to Parent those certain Non-Competition and Confidentiality Covenants in the form approved by the Committee within 180 days after the Grant Date.
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2.
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Performance Vesting.
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(a)
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Maturity Date.
Unless otherwise provided in section 5 or 6 below, the Performance Portion of the Stock Units will vest three business days following the public release of Parent’s audited, consolidated financial statements for the last fiscal year in the Performance Period (the “Maturity Date”). In the event that any provision of this document would otherwise result in the issuance of a fractional Share, Parent will not be obligated to issue such fractional Share.
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(b)
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Performance Portion.
The “Performance Portion” shall be a percentage of the Stock Units calculated as hereinafter provided (provided that the Performance Portion shall never exceed 100% of the Stock Units):
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(i)
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The Performance Portion shall be 0% of the Stock Units if neither the Earnings Threshold nor the Operating Cash Flow Threshold is attained over the Performance Period.
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(ii)
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Subject to reduction pursuant to subsection (iii) below, if the Earnings Threshold or the Operating Cash Flow Threshold has been attained over the Performance Period, the Performance Portion shall be 100% of the Stock Units.
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(c)
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Performance Goals.
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(i)
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“Earnings” means Parent’s consolidated earnings per share on a diluted basis, as reported in Parent’s Annual Report on Form 10-K, aggregated over the Performance Period and as adjusted by the Committee as provided for below and in the Plan. The Earnings Threshold, Earnings Target and Earnings Maximum are expressed in the Notice of Grant as functions of Earnings, as so defined.
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(ii)
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“Operating Cash Flow” means Parent’s consolidated operating cash flow, as reported in Parent’s Annual Report on Form 10-K, aggregated over the Performance Period and as adjusted by the Committee as provided for below and in the Plan. The Operating Cash Flow Threshold, Operating Cash Flow Target and Operating Cash Flow Maximum are set out in the Notice of Grant as functions of Operating Cash Flow, as so defined.
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(iii)
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Earnings and Operating Cash Flow are each a “Performance Goal.” In determining whether any Performance Goal has been met, the Committee shall appropriately adjust any evaluation of attainment of a Performance Goal to exclude any of the following events that occurs during a Performance Period: (i) asset write-downs, (ii) litigation or claim judgments or settlements, (iii) the effect of changes in tax law, accounting principles or other such laws or provisions affecting reported results, (iv) accruals for reorganization and restructuring programs, (v) unusual or infrequently occurring items as described in said Annual Report for the applicable year, (vi) acquisitions or divestitures, (vii) any other specific unusual or nonrecurring events, or objectively determinable category thereto, (viii) foreign exchange gains and losses, and (ix) a change in Parent’s fiscal year.
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(a)
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Following the Maturity Date, the Settlement Value will be issued and delivered in Shares, and any fractional Dividend Equivalent Units credited on vested Stock Units will be settled by the delivery of cash. In each case, delivery will be made within thirty (30) days following the Maturity Date, but in no event later than December 31 of the calendar year in which the last day of the Performance Period occurs, to Participant or an Approved Broker for the account of Participant.
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(b)
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“Settlement Value” means the number of Shares equal to the number of vested Stock Units, plus the number of whole Dividend Equivalent Units credited on such vested Stock Units pursuant to Section 4. The Settlement Value shall be subject to further adjustment as provided in Section 4.2(c) of the Plan, to adjust for, among other corporate developments, stock splits and stock dividends. References to Settlement Values in this document shall be deemed references to Settlement Values as so adjusted.
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Tiffany & Co. 2014 Employee Incentive Plan - Performance-Based Restricted Stock Unit Grant, January 17, 2018
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2
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(i)
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If the Termination Date occurs within or following the last fiscal year of the Performance Period (but prior to the Maturity Date), Stock Units shall vest as provided in Section 2 (subject to all of the terms and conditions thereof, including without limitation the Committee’s discretion in Section 2(b)(iii)), as though Participant’s Termination Date had not occurred before the Maturity Date.
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(ii)
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If the Termination Date occurs within the second fiscal year of the Performance Period, 34% of Stock Units shall vest on the Termination Date.
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(iii)
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If the Termination Date occurs within the first fiscal year of the Performance Period, 17% of Stock Units shall vest on the Termination Date.
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(c)
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Termination due to Retirement
. If Participant’s Termination Date occurs by reason of Retirement, and the Grant Date was at least six months prior to such Termination Date, then the Stock Units shall vest as provided in Section 2 (subject to all of the terms and conditions thereof, including without limitation the Committee’s discretion in Section 2(b)(iii)), as though Participant’s Termination Date had not occurred before the Maturity Date.
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(d)
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Termination due to Eligible Termination.
If Participant’s Termination Date occurs by reason of Eligible Termination, and the Grant Date was at least six months prior to such Termination Date, then the Stock Units shall vest as provided in Section 2 (subject to all of the terms and conditions thereof, including without limitation the Committee’s discretion in Section 2(b)(iii)), as though Participant’s Termination Date had not occurred before the Maturity Date.
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(e)
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Involuntary termination without Cause.
If Participant’s Termination Date occurs at Employer’s initiative but is 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 Parent and its affiliates from all
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Tiffany & Co. 2014 Employee Incentive Plan - Performance-Based Restricted Stock Unit Grant, January 17, 2018
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3
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(i)
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If the Termination Date occurs following the last fiscal year of the Performance Period but prior to the Maturity Date, the percentage of the Stock Units the Committee may elect to vest will be based on Parent’s cumulative performance during the Performance Period.
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(ii)
|
If the Termination Date occurs within the last fiscal year of the Performance Period, the percentage of the Stock Units the Committee may elect to vest will be based on Parent’s cumulative performance during the first and second fiscal year of the Performance Period, as compared to the Performance Goals set out in the Notice of Grant; provided that such Performance Goals 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 2 above.
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(iii)
|
If the Termination Date 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 Parent’s performance during the first fiscal year of the Performance Period, as compared to the Performance Goals set out in the Notice of Grant; provided that such Performance Goals shall be pro-rated for the one-year period (33.33%), and applied in a manner consistent with the guidance provided by the Committee as referenced in Section 2 above.
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(f)
|
In the event that any portion of the Stock Units vest pursuant to this Section, delivery as described in Section 3 shall take place within 30 days after vesting. For the avoidance of doubt, no Stock Units shall vest if Participant’s Termination Date occurs before the start of the Performance Period.
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(a)
|
All Stock Units shall vest upon a Change in Control that is a Terminating Transaction unless the date such Change in Control occurs is before the start of the Performance Period, in which case none of the Stock Units shall vest.
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(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:
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(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.
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(ii)
|
If the Change in Control occurs within or following 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 Parent’s cumulative performance during the first and second fiscal year of the Performance Period, as compared to the Performance Goals expressed in the Notice of Grant; provided that such Performance Goals 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 2 above.
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Tiffany & Co. 2014 Employee Incentive Plan - Performance-Based Restricted Stock Unit Grant, January 17, 2018
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4
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(c)
|
The vesting of the Time-Based Restricted Stock Units converted as described above will occur upon the earliest of the following events: (i) Participant’s Involuntary Termination, (ii) Participant’s Termination Date due to death or Disability, (iii) Participant’s Retirement or (iv) the Maturity Date. If Participant’s Termination Date prior occurs for any other reason prior to the time the Time-Based Restricted Stock Units vest, such Units will expire and be null and void.
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(d)
|
In the event of vesting pursuant to this Section 6, delivery as described in Section 3 shall take place within 30 days after vesting.
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(e)
|
For the avoidance of doubt, no conversion or vesting will occur pursuant to Sections 6(b) or 6(c) if the date of the applicable Change in Control is before the start of the Performance Period.
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Tiffany & Co. 2014 Employee Incentive Plan - Performance-Based Restricted Stock Unit Grant, January 17, 2018
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5
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(a)
|
All Shares shall be subject to the restrictions on sale, encumbrance and other disposition provided by federal, state or foreign law. If at any time Parent determines, in its discretion, that (i) the listing, registration, or qualification of the Stock Units or Shares is required by any securities exchange or any applicable federal, state or foreign law (including any tax code and related regulations) or (ii) the consent or approval of any governmental regulatory authority is necessary or desirable, in either case as a condition to the issuance of Shares to Participant (or his or her beneficiary or estate) hereunder, then such issuance will not occur unless and until such listing, registration, qualification, consent or approval has been completed, effected or obtained, free of any conditions not acceptable to Parent. For the avoidance of doubt, Parent shall be under no obligation to effect such listing, registration, qualification, consent or approval. Further, in the event Parent determines that the delivery of any Shares will violate applicable law, Parent may defer delivery until such date as such delivery will no longer cause such violation, as determined in Parent’s opinion. Parent further reserves the right to impose other requirements or conditions on the settlement of the Stock Units or the issuance or delivery of any Shares delivered in connection with the Stock Units to the extent Parent determines such restrictions or conditions are necessary for legal or administrative reasons, and to require Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
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(b)
|
Without limiting the generality of the foregoing, Parent shall not be obligated to sell or issue any Shares pursuant to this document unless, on the date of sale and issuance thereof, such Shares are either registered under the Securities Act, and all applicable state securities laws, or are exempt from registration thereunder. Regardless of whether the offering and sale of Shares under the Plan have been registered under the Securities Act, or have been registered or qualified under the
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Tiffany & Co. 2014 Employee Incentive Plan - Performance-Based Restricted Stock Unit Grant, January 17, 2018
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6
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Tiffany & Co. 2014 Employee Incentive Plan - Performance-Based Restricted Stock Unit Grant, January 17, 2018
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7
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Tiffany & Co. 2014 Employee Incentive Plan - Performance-Based Restricted Stock Unit Grant, January 17, 2018
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8
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(i)
|
Participant’s conviction or plea of guilty or
nolo contendere
to a felony or any other crime involving financial impropriety or moral turpitude which would tend to subject Parent or any Affiliate of Parent to public criticism or to materially interfere with Participant’s continued employment;
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(ii)
|
Participant's willful and material violation of (A) Parent’s Business Conduct Policy - Worldwide or (B) if applicable, Parent’s Code of Business and Ethical Conduct for Directors, the Chief Executive Officer, the Chief Financial Officer and All Other Officers of the Company, in each case as such policy may be amended from time to time;
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(iii)
|
Participant’s willful failure, or willful refusal, to substantially perform or attempt to substantially perform his or her duties or all such proper and achievable directives issued by Participant’s manager 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), provided Participant receives written notice demanding substantial performance and fails to comply within ten (10) business days of such demand;
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(iv)
|
Participant’s gross negligence in the performance of Participant’s duties and responsibilities that is materially injurious to Parent or any Affiliate of Parent;
|
(v)
|
Participant’s willful breach of any material obligation that Participant has to Parent or any Affiliate of Parent under any written agreement with Parent or such Affiliate;
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(vi)
|
Participant's fraud, dishonesty, or theft with regard to Parent or any Affiliate of Parent; and
|
(vii)
|
Participant’s failure to reasonably cooperate in any investigation of alleged misconduct by Participant, or by any other employee of Parent or any Affiliate of Parent.
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Tiffany & Co. 2014 Employee Incentive Plan - Performance-Based Restricted Stock Unit Grant, January 17, 2018
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9
|
(i)
|
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 (iii) below that does not constitute a Change in Control under clause (iii) 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;
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(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 such date 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 fifty percent (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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Tiffany & Co. 2014 Employee Incentive Plan - Performance-Based Restricted Stock Unit Grant, January 17, 2018
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10
|
(i)
|
a material adverse change in Participant’s duties, authority, responsibilities or reporting responsibility;
|
(ii)
|
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 any agreement between Employer or Parent and Participant;
|
(iii)
|
any other action or inaction that constitutes a material breach by Employer or Parent of any agreement between Participant and Employer. For the avoidance of doubt, any payout of a short-term incentive or annual bonus for a given fiscal year which is less than the target shall not constitute Good Reason, provided that such lower payout is based upon the failure to meet pre-determined performance goals or a good faith determination by Employer or the Committee of Parent Board that Parent’s financial performance or Participant’s personal performance did not warrant a greater payout;
|
(iv)
|
Parent’s failure to comply with the terms of any equity award granted to or required by contract to be granted to Participant; or
|
(v)
|
the relocation of Employer’s office where Participant was based immediately prior to a Change in Control to a location more than fifty (50) miles away, or should Employer require Participant to be based more than fifty (50) miles away from such office (except for required travel on Employer’s business to an extent substantially consistent with Participant’s customary business travel obligations in the ordinary course of business prior to a Change in Control).
|
Tiffany & Co. 2014 Employee Incentive Plan - Performance-Based Restricted Stock Unit Grant, January 17, 2018
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11
|
Tiffany & Co. 2014 Employee Incentive Plan - Performance-Based Restricted Stock Unit Grant, January 17, 2018
|
|
12
|
Tiffany & Co. 2014 Employee Incentive Plan - Performance-Based Restricted Stock Unit Grant, January 17, 2018
|
|
13
|
(c)
|
Termination due to Retirement
. If Participant’s Termination Date occurs by reason of Retirement, then (i) provided the Grant Date was at least six months prior to the Termination Date, all outstanding installments of the Option shall mature on the Maturity Dates specified in the Notice of Grant, and (ii) the Expiration Date for any matured installment of the Option shall be five years from the Termination Date (but in no event later than the ten-year anniversary of the Grant Date).
|
(d)
|
Termination due to Eligible Termination.
If Participant’s Termination Date occurs by reason of Eligible Termination, then (i) provided the Grant Date was at least six months prior to the Termination Date, all outstanding installments of the Option shall mature on the Maturity Dates specified in the Notice of Grant, and (ii) the Expiration Date for any matured installment of the Option shall be five years from the Termination Date (but in no event later than the ten-year anniversary of the Grant Date).
|
(e)
|
Termination for Cause.
If Participant’s Termination Date occurs by reason of involuntary termination for Cause, any installment of the Option that has not yet matured shall not mature and shall be null and void; and the Expiration Date shall be the Termination Date.
|
(f)
|
Effect of Change in Control
. Upon the earlier of (i) the occurrence of a Change in Control that is a Terminating Transaction, or (ii) Participant’s Involuntary Termination, all installments of the Option that have not yet matured shall mature.
|
(c)
|
The Committee may approve other methods of exercise, as provided for in the Plan, before the Option is exercised.
|
Tiffany & Co. 2014 Employee Incentive Plan, Option Terms, January 17, 2018
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2
|
Tiffany & Co. 2014 Employee Incentive Plan, Option Terms, January 17, 2018
|
|
3
|
(a)
|
All Shares shall be subject to the restrictions on sale, encumbrance and other disposition provided by federal, state or foreign law. If at any time Parent determines, in its discretion, that (i) the listing, registration, or qualification of the Option or Shares is required by any securities exchange or any applicable federal, state or foreign law (including any tax code and related regulations) or (ii) the consent or approval of any governmental regulatory authority is necessary or desirable, in either case as a condition to the issuance of Shares to Participant (or his or her beneficiary or estate) hereunder, then such issuance will not occur unless and until such listing, registration, qualification, consent or approval has been completed, effected or obtained, free of any conditions not acceptable to Parent. For the avoidance of doubt, Parent shall be under no obligation to effect such listing, registration, qualification, consent or approval. Further, in the event Parent determines that the delivery of any Shares will violate applicable law, Parent may defer delivery until such date as such delivery will no longer cause such violation, as determined in Parent’s opinion. Parent further reserves the right to impose other requirements or conditions on the issuance or delivery of any Shares delivered in connection with the Option to the extent Parent determines such restrictions or conditions are necessary for legal or administrative reasons, and to require Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
|
(b)
|
Without limiting the generality of the foregoing, Parent shall not be obligated to sell or issue any Shares pursuant to this document unless, on the date of sale and issuance thereof, such Shares are either registered under the Securities Act, and all applicable state securities laws, or are exempt from registration thereunder. Regardless of whether the offering and sale of Shares under the Plan have been registered under the Securities Act, or have been registered or qualified under the securities laws of any state, Parent at its discretion may impose restrictions upon the sale, pledge or other transfer of such Shares (including the placement of appropriate legends on stock certificates or the imposition of stop-transfer instructions) if, in the judgment of Parent, such restrictions are necessary in order to achieve compliance with the Securities Act or the securities laws of any state or any other law.
|
Tiffany & Co. 2014 Employee Incentive Plan, Option Terms, January 17, 2018
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|
4
|
Tiffany & Co. 2014 Employee Incentive Plan, Option Terms, January 17, 2018
|
|
5
|
(i)
|
Participant’s conviction or plea of guilty or
nolo contendere
to a felony or any other crime involving financial impropriety or moral turpitude which would tend to subject Parent or any Affiliate of Parent to public criticism or to materially interfere with Participant’s continued employment;
|
(ii)
|
Participant’s willful and material violation of (A) Parent’s Business Conduct Policy - Worldwide or (B) if applicable, Parent’s Code of Business and Ethical Conduct for Directors, the Chief Executive Officer, the Chief Financial Officer and All Other Officers of the Company, in each case as such policy may be amended from time to time;
|
(iii)
|
Participant’s willful failure, or willful refusal, to substantially perform or attempt to substantially perform his or her duties or all such proper and achievable directives issued by Participant’s manager 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), provided Participant receives written notice demanding substantial performance and fails to comply within ten (10) business days of such demand;
|
(iv)
|
Participant’s gross negligence in the performance of Participant’s duties and responsibilities that is materially injurious to Parent or any Affiliate of Parent;
|
(v)
|
Participant’s willful breach of any material obligation that Participant has to Parent or any Affiliate of Parent under any written agreement with Parent or such Affiliate;
|
(vi)
|
Participant’s fraud, dishonesty, or theft with regard to Parent or any Affiliate of Parent; and
|
(vii)
|
Participant’s failure to reasonably cooperate in any investigation of alleged misconduct by Participant, or by any other employee of Parent or any Affiliate of Parent.
|
(i)
|
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
|
Tiffany & Co. 2014 Employee Incentive Plan, Option Terms, January 17, 2018
|
|
6
|
(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 such date 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 fifty percent (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, Option Terms, January 17, 2018
|
|
7
|
(i)
|
a material adverse change in Participant’s duties, authority, responsibilities or reporting responsibility;
|
(ii)
|
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 any agreement between Employer or Parent and Participant;
|
(iii)
|
any other action or inaction that constitutes a material breach by Employer or Parent of any agreement between Participant and Employer. For the avoidance of doubt, any payout of a short-term incentive or annual bonus for a given fiscal year which is less than the target shall not constitute Good Reason, provided that such lower payout is based upon the failure to meet pre-determined performance goals or a good faith determination by Employer or the Committee of Parent Board that Parent’s financial performance or Participant’s personal performance did not warrant a greater payout;
|
(iv)
|
Parent’s failure to comply with the terms of any equity award granted to or required by contract to be granted to Participant; or
|
(v)
|
the relocation of Employer’s office where Participant was based immediately prior to a Change in Control to a location more than fifty (50) miles away, or should Employer require Participant to be based more than fifty (50) miles away from such office (except for required travel on Employer’s business to an extent substantially consistent with Participant’s customary business travel obligations in the ordinary course of business prior to a Change in Control).
|
Tiffany & Co. 2014 Employee Incentive Plan, Option Terms, January 17, 2018
|
|
8
|
Tiffany & Co. 2014 Employee Incentive Plan, Option Terms, January 17, 2018
|
|
9
|
Tiffany & Co. 2014 Employee Incentive Plan, Option Terms, January 17, 2018
|
|
10
|