Exhibit 10.141a
For use in connection with Restricted Stock Unit Grants
NON-COMPETITION AND CONFIDENTIALITY COVENANTS
THIS INSTRUMENT is made and given this ___ day of _________ 2005 by
________________________________________________________("Participant") to and
for the benefit of Tiffany and Company, a New York corporation and its
Affiliates (as defined below) with reference to the following facts and
circumstances:
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;
B. Participant may have received Equity Awards which, when granted, were
not subject to the above condition;
C. Participant may be or may become a Participant in and under the Excess
Plan;
D. Participant may be or may become a Participant in and under the
Supplementary Retirement Plan;
E. Participant 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;
F. Participant understands that if Participant is or becomes a
Participant in the Excess Plan or the Supplementary Retirement Plan
the benefits Participant might receive under both plans will be
forfeited for breach of covenants contained in this instrument;
G. Participant understands that Equity Awards may be forfeited if
Participant breaches the covenants contained in this instrument;
H. Participant understands that the Proceeds of Equity Awards may become
due and payable by Participant to Tiffany and Company if Participant
breaches the covenants contained in this instrument;
I. Participant agrees that the receipt of one or more Equity Awards is
full and fair and consideration for the covenants made in this
instrument.
NOW THEREFORE, Participant hereby agrees as follows:
1. Defined Terms. Unless otherwise defined in this instrument, words and phrases
that have a defined meaning in the Excess Plan shall have the same meaning in
this instrument. The initially capitalized words and phrases set forth below
shall have the meanings ascribed to them below:
"Affiliate" shall mean, with reference to any Person, any second Person that
controls, is controlled by, or is under common control with, any such first
Person, directly or indirectly.
"Board" means the board of directors of Tiffany and Company, a New York
corporation.
"Cause" means a termination of Participant's employment, involuntary on
Participant's part, which is the result of:
(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;
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(v) A theft, fraud or embezzlement perpetrated by Participant upon
Company or any of its Affiliates.
"Change in Control" means a change in control of Parent of a nature that would
be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Exchange Act, whether or not Parent is then
subject to such reporting requirement; provided, however, that, anything in this
Agreement to the contrary notwithstanding, a Change in Control shall be deemed
to have occurred if:
(i) any Person, or any syndicate or group deemed to be a person
under Section 14(d)(2) of the Exchange Act, excluding Parent
or any of its Affiliates, a trustee or any fiduciary holding
securities under an employee benefit plan of Parent or any
of its Affiliates, an underwriter temporarily holding
securities pursuant to an offering of such securities or a
corporation owned, directly or indirectly by stockholders of
Parent in substantially the same proportion as their
ownership of Parent, is or becomes the "beneficial owner"
(as defined in Rule 13d-3 of the General Rules and
Regulations 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) ten (10) days following the "Shares Acquisition Date" if any
Person has in fact become and then remains an "Acquiring
Person" under the Rights Plan;
(iii)if the Parent Board should resolve to redeem the "Rights"
under the Rights Plan in response to a proposal by any
Person to acquire, directly or indirectly, securities of
Parent representing Fifteen percent (15%) or more of the
combined voting power of Parent's then outstanding
securities entitled to vote in the election of directors of
Parent;
(iv) if the Incumbent Directors cease to constitute a majority of
the Parent Board; provided, however, that no person shall be
deemed an Incumbent Director if he or she was appointed or
elected to the Parent Board after having been designated to
serve on the Parent Board by a Person who has entered into
an agreement with Parent to effect a transaction described
in clauses (i), (iii), (v), (vi), (vii), (viii) or (ix) of
this definition;
(v) there occurs a reorganization, merger, consolidation or
other corporate transaction involving Parent, in each case
with respect to which the stockholders of Parent immediately
prior to such
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transaction do not, immediately after such transaction, own
more than Fifty percent (50%) of the combined voting power
of the Parent or other corporation resulting from such
transaction, as the case may be;
(vi) all or substantially all of the assets of Parent are sold,
liquidated or distributed, except to an Affiliate of Parent;
(vii)all or substantially all of the assets of Tiffany and
Company are sold, liquidated or distributed, except to an
Affiliate of Parent;
(viii) any Person, or any syndicate or group deemed to be a
person under Section 14(d)(2) of the Exchange Act, excluding
Parent or any of its Affiliates, a trustee or any fiduciary
holding securities under an employee benefit plan of Parent
or any of its Affiliates, an underwriter temporally holding
securities pursuant to an offering of such securities or a
corporation owned, directly or indirectly by stockholders of
Parent in substantially the same proportion as their
ownership of Parent, is or becomes the "beneficial owner"
(as defined in Rule 13d-3 of the General Rules and
Regulations under the Exchange Act), directly or indirectly,
of securities of Tiffany and Company representing Fifty
percent (50%) or more of the combined voting power of
Tiffany and Company's then outstanding securities entitled
to vote in the election of directors of Tiffany and Company;
or
(ix) there is a "change of control" or a "change in the effective
control" of Parent within the meaning of Section 280G of the
Code and the Regulations.
"Change in Control Date" shall mean the date on which a Change of Control
occurs.
"Confidential Information" means all information relating in any manner to
Tiffany or its business, including but not limited to, contemplated new products
and services, marketing and advertising campaigns, sales projections, creative
campaigns and themes, financial information, budgets and projections, system
designs, employees, management procedures and systems, employee training
materials, equipment, production plans and techniques, product and materials
specifications, product designs and design techniques, client information
(including purchase history and client identifying information) and vendor
information (including the identity of vendors and information concerning the
capacity of or products or pricing provided by specific vendors);
notwithstanding the foregoing, "Confidential Information" shall not include
information that becomes generally publicly available other than as a result of
a disclosure by Participant or that becomes available to Participant on a
non-confidential basis from a Person that to the Participant's knowledge, after
due inquiry, is not bound by a duty of confidentiality.
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"Covered Employee" means any person who, at any date relevant to this Agreement,
is an employee of Tiffany or who was an employee of Tiffany during the one-year
period previous to the date relevant to this Agreement.
"Duration of Non-Competition Covenant" means the period beginning with
Participant's Termination Date and ending upon the first to occur of the
following: (i) the second year anniversary of Participant's Termination Date,
(ii) Participant's Change of Control Date or (iii) Participant's 60th birthday
provided that, in no circumstance shall the Duration of this Covenant be less
than six months.
"Equity Awards" means any grant of options to purchase, restricted shares of,
stock units that may be settled in, or stock appreciation rights that may be
measured by appreciation in the value of, the Common Stock of Tiffany & Co., a
Delaware corporation, including any grants made under the terms of the 1998
Employee Incentive Plan or any plan adopted by Tiffany & Co. subsequent to the
date of this instrument including grants made both before and after the date of
this instrument.
"Excess Plan" means the 2004 Tiffany and Company Un-funded Retirement Income
Plan to Recognize Compensation In Excess of Internal Revenue Code Limits, as
such plan may be amended from time to time.
"Jewelry" means jewelry (including but not limited to precious metal or silver
jewelry or jewelry containing gemstones) and watches.
"Parent" means Tiffany & Co., a Delaware corporation.
"Person" means any individual, firm, corporation, partnership, limited
partnership, limited liability partnership, business trust, limited liability
company, unincorporated association or other entity, and shall include any
successor (by merger or otherwise) of such entity.
"Proceeds of Equity Award" means, in U.S. dollars, (i) with respect to an Equity
Award of restricted stock or stock units, the value the shares on the date the
Equity Award vests, and, (ii) with respect to an Equity Award that is an option
to purchase or a stock appreciation right, the spread between the strike price
and the market value for the underlying shares on the exercise date, in each of
cases (i) and (ii) measured by the simple average of the high and low selling
prices on the principal market on which the shares are traded as of vesting or
exercise date, as the case may be, if such vesting or exercise date is a trading
date; if such vesting or exercise date is not a trading date, then as of trading
date next following the vesting or exercise date.
"Normal Retirement Age" means the later of (i) Participant's 65th birthday or
(ii) the 5th anniversary from his date of hire.
"Retail Jewelry Trade" means the operation of one or more retail outlets
(including stores-within-stores, leased departments or concessions) selling
Jewelry in any city in the
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world in which a TIFFANY & CO. store is located at the time in question; for the
purpose of this definition, a retail outlet will not be deemed engaged in the
Retail Jewelry Trade if less than 5% of the items displayed for sale in such
outlet are Jewelry, so that, by way of example, an apparel store that offers
Jewelry as an incidental item would not be deemed engaged in the Retail Jewelry
Trade.
"Rights Plan" means the Amended and Restated Rights Agreement Dated as of
September 22, 1998 by and between Tiffany & Co., a Delaware corporation, and
ChaseMellon Shareholder Services L.L.C., as Rights Agent, as such Agreement may
be further amended from time to time.
"Supplementary Retirement Plan" means the 1994 Tiffany and Company Supplementary
Retirement Income Plan, as such plan may be further amended from time to time.
"Termination Date" means the date Participant ceases to be an employee of
Tiffany or its Affiliate.
"Tiffany" means Tiffany and Company, a New York corporation, and if the context
so requires, Tiffany and Company and/or any Affiliate of Tiffany and Company,
such term to be interpreted broadly so as to give rights equivalent to Tiffany
and Company to any Affiliate of Tiffany and Company.
"Wholesale Jewelry Trade" means the sale of Jewelry or gemstones to the Retail
Jewelry Trade, the development or design of Jewelry for sale to the Retail
Jewelry Trade or the production of Jewelry for sale to the Retail Jewelry Trade
regardless of where in the world such activities are conducted.
2. Non-Competition. Participant agrees that for the Duration of the
Non-Competition Covenant Participant will not directly or indirectly (whether as
director, officer, consultant, principal, owner, member, partner, advisor,
financier, employee, agent or otherwise):
(i) engage in, assist, have any interest in or contribute Participant's
knowledge and abilities to, any business or entity in the Retail Jewelry Trade
or in the Wholesale Jewelry Trade or seeking to enter or about to become engaged
in the Retail Jewelry Trade or the Wholesale Jewelry Trade (provided that this
subsection shall not prohibit an investment by Participant not exceeding five
percent of the outstanding securities of a publicly traded company);
(ii) employ, attempt to employ, or assist anyone in employing a Covered
Employee (including by influencing any Covered Employee to terminate his/her
employment with Tiffany or to accept employment with any Person); or
(iii) attempt in any manner to solicit jewelry purchases by any client of
Tiffany or persuade any client of Tiffany to cease doing business or reduce the
amount of business that such client has customarily done with Tiffany.
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The provisions of Section 2(i) above shall not apply if Participant's employment
with Tiffany or Tiffany's Affiliate is terminated by Tiffany or such Affiliate
for reasons other than Cause or if, having reached Participant's Normal
Retirement Age or Participant's Change of Control Date, Participant voluntarily
resigns from such employment. The provisions of this Section 2 may be waived by
the Board, in whole or in part, if deemed by the Board to be in the best
interests of Tiffany and Company, provided, however, that if the Participant is,
on or within six months prior to Participant's Termination Date, an officer of
Tiffany & Co., a Delaware corporation, then the provisions of this Section 2 may
only be waived by the Compensation Committee (or its Stock Option Subcommittee)
of the Board of Directors of said Tiffany & Co.
3. Confidentiality. Participant acknowledges that Participant has had access to
Confidential Information. Participant agrees not use to the detriment of Tiffany
or disclose any Confidential Information. If the Participant is requested in any
case by a court or governmental body to make any disclosure of Confidential
Information, the Participant shall (i) promptly notify Tiffany in writing, (ii)
consult with and assist Tiffany at Tiffany's expense in obtaining an injunction
or other appropriate remedy to prevent such disclosure, and (iii) use
Participant's reasonable efforts to obtain at the Company's expense a protective
order or other reliable assurance that confidential treatment will be accorded
to any Confidential Information that must be disclosed. Subject to the foregoing
sentence, Participant may furnish that portion (and only that portion) of the
Confidential Information that, in the written opinion of Participant's counsel
(the form and substance of which opinion shall be reasonably acceptable to
Tiffany), the Participant is legally compelled or otherwise required to disclose
or else stand liable for contempt or suffer other material penalty. The
obligations in this section shall continue beyond the Duration of the
Non-Competition Covenant.
4. Loss of Benefits, Forfeiture of Equity Awards and Return of Proceeds of
Equity Awards in the Event of Breach. Should Participant breach Participant's
obligations under Section 2 above, Participant shall:
(i) forfeit and lose all right to any current or future Benefit under the
Excess Plan and the Supplementary Retirement Plan;
(ii) forfeit and lose all rights under any Equity Award, whether or not
such Equity Award shall have vested, and such Equity Award shall thereupon
become null and void; and
(iii) immediately pay to Tiffany and Company the Proceeds of Equity Award
for (a) each grant of stock option or stock appreciation right that was
exercised and (b) each grant of restricted stock or stock units that has vested,
in both cases (a) and (b), within the following period: beginning 180 days prior
to Participant's Termination Date and including the entire period of the
Duration of Non-Competition Covenant.
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5. Enforcement.
(i) Participant agrees that the restrictions set forth in this instrument
are reasonable and necessary to protect the goodwill of Tiffany. If any of the
provisions set forth herein is deemed invalid, illegal or unenforceable based
upon duration, geographic scope or otherwise, Participant agrees that such
provision shall be modified to make it enforceable to the fullest extent
permitted by law.
(ii) In the event of breach or threatened breach by Participant of the
provisions set forth in this instrument, Participant acknowledges that Tiffany
will be irreparably harmed and that monetary damages (including loss of the
Benefit) shall be an insufficient remedy to Tiffany. Therefore, Participant
consents to the enforcement of this instrument by means of temporary or
permanent injunction and other appropriate equitable relief in any competent
court, in addition to any other remedies Tiffany may have under this Agreement
or otherwise.
6. Procedure to Obtain Determination. Should Participant wish to obtain a
determination that any proposed employment, disclosure, arrangement or
association (each a "Proposed Transaction") is not prohibited hereunder,
Participant shall direct a written request to the Board. Such request shall
fully describe the Proposed Transaction. Within 30 days after receipt of such
request, the Board may (i) issue such a determination in writing, (ii) issue its
refusal of such request in writing, or (iii) issue a written request for more
written information concerning the Proposed Transaction. In the event that
alternative (iii) is elected (which election may be made on behalf of the Board
by the Legal Department of Tiffany and Company without action by the Board), any
action on Participant's request will be deferred for ten (10) days following
receipt by said Legal Department of the written information requested. Failure
of the Board to act within any of the time periods specified in this Section 4
shall be deemed a determination that the Proposed Transaction is not prohibited
hereunder. A determination made or deemed made under this Section 6 shall be
limited in effect to the Proposed Transaction described in the submitted
materials and shall not be binding or constitute a waiver with respect to any
other Proposed Transaction, whether proposed by such Participant or any other
Person. In the event that Participant wishes to seek a determination that
employment with a management consulting firm, an accounting firm, a law firm or
some other provider of consulting services to a wide variety clients will not be
prohibited hereunder should such firm, at some unspecified time, provide
services to a Person in the Retail Jewelry Trade or the Wholesale Jewelry Trade,
Participant may seek a determination hereunder; in submitting such a Proposed
Transaction, the Participant should specify the extent that Participant will be
involved in or can be excluded from involvement in the provision of such
services. In a making any determination under this Section 6, the Board shall
not be deemed to be acting as a fiduciary with respect to the Excess Plan, the
Participant or any beneficiary of the Participant and shall be under no
obligation to issue a determination that any Proposed Transaction is not
prohibited hereunder.
7. Arbitration and Equitable Relief. Participant and Tiffany agree that any and
all disputes arising out or relating to the interpretation or application of
this instrument,
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including any dispute concerning whether any conduct is in violation of Section
2 or 3 above, shall be subject to arbitration in New York, New York, under the
then existing Commercial Arbitration Rules of the American Arbitration
Association. Arbitration proceedings shall be conducted by three arbitrators.
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 be borne equally by the parties and
each party to the arbitration shall bear its own attorneys fees. Notwithstanding
any provision in this Section 7, the requirement to arbitrate disputes shall not
apply to any action to enforce this instrument by means of temporary or
permanent injunction or other appropriate equitable relief.
8. Miscellaneous Provisions.
(a) Tiffany may assign its rights to enforce this instrument to any of its
Affiliates. Participant understands and agrees that the promises in this
instrument are for the benefit of Tiffany (which term includes the Tiffany and
Company and its Affiliates) and for the benefit of the successors and assigns of
Tiffany and its Affiliates.
(b) Any determination made by the Board under Section 6 above shall bind Tiffany
and Company and its Affiliates.
(c) If any action by Participant prohibited hereunder causes Participant to lose
a right to a Benefit under the Excess Plan such loss of Benefit shall also be
effective with respect to Participant's beneficiaries under the Excess Plan.
(d) 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 instrument
and all of the prohibitions and remedies it contemplates, including, without
limitation, its validity, interpretation, construction, performance and
enforcement.
(e) Each Person giving or making any notice, request, demand or other
communication (each, a "Notice") pursuant to this Instrument shall
(i) give the Notice in writing; and
(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.
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(C) Nationally recognized overnight courier, with all fees
prepaid.
(f) Each Person giving a Notice shall address the Notice to the recipient (the
"Addressee") at the address given on the signature page of this Instrument or to
a changed address designated in a Notice.
(g) A Notice is effective only if the person giving the Notice has complied with
subsections (e) and (f) and if the Addressee has received the Notice. A Notice
is deemed to have been received upon receipt as indicated by the date on the
signed receipt, provided, however, that if the Addressee rejects or otherwise
refuses to accept the Notice, or if the Notice cannot be delivered because of a
change in address for which no Notice was given, then upon such rejection,
refusal or inability to deliver such Notice will be deemed to have been
received. Despite the other clauses of this subsection (g), if any Notice is
received after 5:00 p.m. on a business day where the Addressee is located, or on
a day that is not a business day where the Addressee is located, then the Notice
is deemed received at 9:00 a.m. on the next business day where the Addressee is
located.
(h) This instrument shall not be amended except by a subsequent written
instrument that has been executed by Participant and on behalf of Tiffany by a
duly authorized officer of Tiffany. Participant's obligations under this
instrument may not be waived, except pursuant to a writing executed on behalf of
Tiffany or as otherwise provided in Section 6 above.
(i) This instrument constitutes the final expression of Participant's
post-employment confidentiality and non-competition obligations. Delivery of
this instrument is necessary to receive a Benefit under the Excess Plan. It is
the complete and exclusive expression of those obligations and all prior and
contemporaneous negotiations and agreement between the parties on those matters
are expressly merged into and superceded by this Agreement; notwithstanding the
foregoing, Participant's right to receive a Benefit and the amount and terms of
payment of such Benefit shall be exclusively determined by the Excess Plan.
[the balance of this page has been left intentionally blank]
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(j) Any reference in this instrument to the singular includes the plural where
appropriate, and any reference in this instrument to the masculine gender
includes the feminine and neuter genders where appropriate. The descriptive
headings of the sections of this instrument are for convenience only and do not
constitute part of this instrument.
IN WITNESS WHEREOF, this instrument has been executed on the date first written
above.
Participant
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Name:
Notice Address:
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Accepted and agreed (as to Section 7)
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Tiffany and Company
By:______________________
Name:
Title:
Notice Address:
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The Board of Directors
Tiffany and Company
Care of:
Legal Department
600 Madison Avenue
New York, NY 10022
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