Exhibit (d)
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is dated as of August 12,
2002 between TSAC Corp., a Delaware corporation (the "Buyer"), on the one hand
and Jewelcor Management, Inc., a Nevada corporation ("Jewelcor"), Seymour
Holtzman, an individual ("Holtzman") and Steven Holtzman ("Family Member" and
together with Holtzman and Jewelcor, the "Sellers"), on the other hand.
RECITALS
A. The Buyer is an indirect wholly-owned subsidiary of Tiffany & Co., a
Delaware corporation ("Tiffany"). Through its wholly-owned subsidiary Tiffany &
Co. International, a Delaware corporation ("International"), Tiffany owns
7,410,000 shares of common stock, par value $0.01 per share (the "Common
Stock"), of Little Switzerland, Inc., a Delaware corporation (the "Company").
B. The Sellers own beneficially and of record, 1,969,692 shares of Common
Stock, consisting of 1,688,692 shares of Common Stock owned by Jewelcor,
currently exercisable options to purchase 100,000 shares of Common Stock owned
by Jewelcor, currently exercisable options to purchase 133,000 shares of Common
Stock owned by Holtzman and 48,000 shares of Common Stock owned by Family
Member. The shares of Common Stock owned by the Sellers at the Closing Date (as
defined below), including any shares of Common Stock acquired by the exercise of
the Options between the date hereof and the Closing Date, are referred to as the
"Shares". The options to purchase shares of Common Stock owned by the Sellers
are referred to as the "Options".
C. The Buyer is willing to acquire the Shares from the Sellers and to
offer to purchase the remaining shares of Common Stock held by the public
stockholders of the Company, all upon the terms and subject to the conditions
set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained in this Agreement and for other valuable consideration, the Buyer and
the Sellers agree as follows:
ARTICLE ONE
TERMS OF THE TRANSACTION
SECTION 1.1 SALE AND PURCHASE. Subject to the conditions set forth in
Article Five, the Sellers, on the Closing Date, shall sell the Shares to the
Buyer by delivering certificates for the Shares to the Buyer in proper form for
transfer by delivery or with duly executed stock powers attached thereto.
SECTION 1.2 PURCHASE PRICE. As consideration for the Shares, the Buyer
shall pay to the Sellers a purchase price of $2.40 per Share (the "Purchase
Price"); provided, however, that if the Tender Offer Price (as defined below) is
greater than $2.40 per share, the Purchase
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Price shall be increased so as to be equal to the Tender Offer Price. The Buyer
shall pay the Sellers the Purchase Price by wire transfer of immediately
available funds on the Closing Date to the account(s) designated by Sellers and
communicated to the Buyer in writing prior to the Closing Date.
SECTION 1.3 SURRENDER OF OPTIONS. The Sellers, on the Closing Date, shall
surrender to the Company for immediate cancellation, for no additional
consideration, any Options that have not been exercised at or prior thereto.
SECTION 1.4 THE TENDER OFFER. (a) Provided that this Agreement shall not
have been terminated in accordance with Section 6.1 and subject to the terms
hereof, as promptly as practicable, but in no event later than five business
days after the public announcement of the execution hereof by the parties (which
announcement shall occur within five days after the date hereof), the Buyer
shall commence (within the meaning of Rule 14d-2 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), a tender offer (the "Tender
Offer") to acquire all of the outstanding shares of Common Stock at a price of
$2.40 per share, net to the seller in cash, less any required withholding taxes.
Such price per share, or any greater amount per share paid pursuant to the
tender offer, is referred to as the "Tender Offer Price"). The Buyer's
obligation to accept for payment and to pay for any shares of Common Stock in
the Tender Offer shall be subject only to (i) the condition that there shall
have been validly tendered a number of shares of Common Stock, which together
with any shares of Common Stock owned directly or indirectly by Tiffany,
including shares to be acquired under this Agreement, constitute at least 90% of
the outstanding shares of Common Stock on a fully-diluted basis (including for
the purposes of such calculation all shares of Common Stock issuable upon
exercise of all vested options or other exercisable Convertible Securities (as
defined below), not including the Options to be surrendered under this
Agreement) (the "Minimum Condition"), (ii) the condition that there shall have
been validly tendered at least a majority of the Common Stock on a fully-diluted
basis, excluding shares owned by the Buyer, its Affiliates or the Sellers (the
"Majority of the Minority Condition") and (iii) the other conditions set forth
in Annex A. The Buyer expressly reserves the right to increase the Tender Offer
Price or to make any other changes in the terms and conditions of the Tender
Offer, but may not decrease the Tender Offer Price, add any condition not set
forth in Annex A except as may be necessary or appropriate to comply with legal
or regulatory requirements, or increase the Minimum Condition or the Majority of
the Minority Condition or otherwise expand, or make more difficult the
satisfaction of, any condition set forth in Annex A. The conditions set forth in
Annex A are for the sole benefit of Tiffany and the Buyer and, except as set
forth in the Offer Documents, may be waived by Tiffany and the Buyer, in whole
or in part at any time and from time to time, in their sole discretion. The
failure by Tiffany and the Buyer at any time to exercise any of the foregoing
rights shall not be deemed a waiver of any such right, and each such right shall
be deemed an ongoing right that may be asserted at any time and from time to
time.
(b) As soon as practicable on the date the Tender Offer is
commenced, the Buyer will file with the Securities and Exchange Commission a
Tender Offer Statement on Schedule TO (together with all amendments and
supplements thereto, and including all exhibits thereto, the "Schedule TO") with
respect to the Tender Offer. The Buyer will cause the Schedule TO, the Offer to
Purchase and all amendments or supplements thereto (which together constitute
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the "Offer Documents") to comply in all material respects with the Exchange Act
and the rules and regulations thereunder.
(c) In the event that this Agreement has been terminated pursuant to
Section 6.1, the Buyer promptly will terminate the Tender Offer without
accepting any shares of Common Stock for payment.
SECTION 1.5 THE CLOSING. The closing of the purchase and sale of the
Shares (the "Closing") shall be held at the offices of Gibson, Dunn & Crutcher
LLP, 200 Park Avenue, New York, New York or at such other place as the parties
may agree upon, at 10:00 A.M., local time, on the same date as the closing of
the first purchase of shares of Common Stock pursuant to the Tender Offer (the
"Closing Date"). To the extent, if any, required by Rule 14e-5 under the
Exchange Act or other applicable law, the Shares shall be accepted and purchased
as part of the Tender Offer.
ARTICLE TWO
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers, jointly and severally, represents and warrants to the
Buyer, as of the date hereof and as of the Closing Date, as follows:
SECTION 2.1 POWER AND CAPACITY. (a) Jewelcor is duly organized and validly
existing under the laws of the State of Nevada and has full power and legal
right to, and Holtzman and Family Member each have the legal capacity to,
execute and deliver this Agreement, to perform its or his respective obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by the Sellers, constitutes the
legal, valid and binding agreement of the Sellers and is enforceable against the
Sellers in accordance with its terms.
(b) The execution and delivery by Jewelcor of this Agreement do not,
and the consummation of the transactions contemplated hereby will not, (i)
violate any provision of the articles of incorporation or by-laws of Jewelcor,
(ii) conflict with or result in a breach of, create an event of default (or an
event that, with the giving of notice or lapse of time or both, would constitute
an event of default) under, or give any third party the right to accelerate any
obligation under, any agreement, mortgage, license, lease, indenture,
instrument, order, arbitration award, judgment or decree to which Jewelcor is a
party or by which Jewelcor or any asset or property of Jewelcor is bound or
affected.
SECTION 2.2 THE SHARES AND THE OPTIONS. As of the date hereof, Jewelcor is
the beneficial and record owner of 1,688,692 shares of Common Stock and holds
currently exercisable options to acquire an additional 100,000 shares of Common
Stock. As of the date hereof, Holtzman holds currently exercisable options to
acquire 133,000 shares of Common Stock. As of the date hereof, Family Member is
the beneficial and record owner of 48,000 shares of Common Stock. None of the
Sellers owns any other shares of Common Stock or Convertible Securities. The
Shares owned by the Sellers as of the date hereof are held, and the Shares held
by the Sellers as of the Closing Date will be held, by the Sellers as record
owners thereof, free and clear of all liens, charges, encumbrances, equities and
claims whatsoever and
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are not and will not be subject to any restriction with respect to their
transferability. No third party has a basis for any claim against (or with
respect to) the Shares. Upon the payment by the Buyer of the Purchase Price as
provided for herein and the delivery of the certificates for the Shares by the
Sellers, the Buyer will possess good and marketable title to all of the Shares,
free and clear of all liens, charges, encumbrances, equities and claims
whatsoever.
SECTION 2.3 FINDERS OR BROKERS. In connection with the consummation of the
transactions contemplated hereby, the Sellers have not employed any investment
banker, broker, finder or intermediary in connection with the transactions
contemplated hereby who might be entitled to a fee or commission in connection
with this Agreement and the transactions contemplated hereby.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Sellers, as of the date hereof
and as of the Closing Date, that:
SECTION 3.1 POWER AND CAPACITY. (a) The Buyer is duly organized and
validly existing under the laws of the State of Delaware and has full power and
legal right to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by the Buyer, constitutes the
legal, valid and binding agreement of the Buyer and is enforceable against the
Buyer in accordance with its terms.
(b) The execution and delivery by the Buyer of this Agreement do
not, and the consummation of the transactions contemplated hereby will not, (i)
violate any provision of the articles of incorporation or by-laws of the Buyer,
(ii) conflict with or result in a breach of, create an event of default (or an
event that, with the giving of notice or lapse of time or both, would constitute
an event of default) under, or give any third party the right to accelerate any
obligation under, any agreement, mortgage, license, lease, indenture,
instrument, order, arbitration award, judgment or decree to which the Buyer is a
party or by which the Buyer or any asset or property of the Buyer is bound or
affected.
ARTICLE FOUR
COVENANTS OF THE SELLERS AND THE BUYER
SECTION 4.1 RESIGNATION. As of the Closing Date, Holtzman shall resign as
a director, officer and employee of the Company and its Affiliates.
SECTION 4.2 PUBLICITY; CONFIDENTIALITY. Except as required by law, the
Sellers may not, prior to the Closing Date, directly or indirectly issue any
press release or otherwise make any public statement or disclosure with respect
to the existence or terms of this Agreement, the transactions contemplated
hereby or the Tender Offer without first consulting with the Buyer and obtaining
the written consent thereof.
SECTION 4.3 EXCLUSIVITY. Except as is required, such requirement to be
evidenced by a written opinion of counsel, for Holtzman to meet his fiduciary
obligations as a
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member of the board of directors of the Company, from the date hereof until the
Closing Date, the Sellers may not, directly or indirectly, solicit, negotiate or
encourage or provide any information for the purpose of soliciting or
negotiating any proposal (whether or not such proposal shall constitute a
binding offer to purchase) for the acquisition of all or any portion of the
Common Stock other than this Agreement and the Tender Offer or any challenge to
the legality, fairness or attractiveness of the Tender Offer.
SECTION 4.4 FURTHER ASSURANCES. The Buyer and the Sellers, at their sole
cost and expense and without expense to the other parties, will do such further
acts and execute and deliver such further documents regarding their obligations
hereunder as may be reasonably required solely for the purpose of (i)
accomplishing the purposes of this Agreement or (ii) assuring and confirming
unto the other party, the validity of any documents of conveyance to be
delivered at Closing.
ARTICLE FIVE
CONDITIONS TO THE BUYER'S AND SELLERS' OBLIGATIONS
The obligations of the Buyer and the Sellers hereunder shall be subject to
the satisfaction, as of the Closing Date, of certain conditions as specifically
set forth below (any of which may be waived only by the party entitled to the
benefit of such condition in its sole discretion):
SECTION 5.1 TENDER OFFER. The obligations of the Buyer under this
Agreement shall be subject to the satisfaction or waiver, as of the Closing
Date, of the conditions set forth in Annex A.
SECTION 5.2 DELIVERY OF THE SHARES. The Sellers shall have delivered to
the Buyer certificates for all of the Shares in proper form for transfer by
delivery or with duly executed stock powers attached thereto. The Buyer is not
obligated to close or purchase any Shares if less than all of the Shares are
tendered at the Closing in accordance with the terms hereof. The Buyer shall
have paid to the Sellers the Purchase Price as set forth in Section 1.2 hereof.
SECTION 5.3 SURRENDER OF THE OPTIONS. The Sellers shall have surrendered
to the Company for immediate cancellation any Options that have not been validly
exercised between the date hereof and the Closing Date.
SECTION 5.4 LEGAL PROCEEDINGS. No action, suit, proceeding or
investigation shall be pending or threatened before or by any court or
governmental body or agency (i) challenging the transactions contemplated by
this Agreement or otherwise seeking damages or (ii) seeking to restrain or
prevent the carrying out of the transactions contemplated by this Agreement or
to prohibit or limit the ability of the Buyer to exercise full rights of
ownership of the Shares or the ability of the Company to operate or control the
assets, property and business of the Company after the Closing Date.
SECTION 5.5 FIRPTA CERTIFICATE. The Sellers shall have furnished the Buyer
with a certificate of non-foreign status executed by each of the Sellers and
satisfying the requirements of Section 1.1445-2(b)(2)(i) of the United States
Treasury Regulations promulgated under the Code.
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SECTION 5.6 REPRESENTATION AND WARRANTIES. The representations and
warranties of the Sellers set forth in Article Two shall be true and complete in
all material respects as of the date hereof and the Closing Date. The
representations and warranties of the Buyer set forth in Article Three shall be
true and complete in all material respects as of the date hereof and the Closing
Date.
ARTICLE SIX
MISCELLANEOUS
SECTION 6.1 TERMINATION. (a)This Agreement and the transactions
contemplated hereby may be terminated at any time on or prior to the Closing as
follows:
(i) by the written consent of the Buyer and the Sellers;
(ii) by the Buyer if (x) there is or occurs an inaccuracy in
any of the representations and warranties or the breach of any
covenant of the Sellers set forth in this Agreement, which
inaccuracy or breach is not capable of being cured before the
Closing Date; (y) the conditions to the Buyer's obligations under
this Agreement set forth in Article Five have not been satisfied or
waived by the Buyer as of the Closing Date; or (z) there has
occurred any material adverse change in the Company's financial
condition, results of operations, business or prospects; or
(iii) by the Sellers if (x) there is or occurs an inaccuracy
in any of the representations and warranties or the breach of any
covenant of the Buyer set forth in this Agreement, which inaccuracy
or breach is not capable of being cured before the Closing Date; (y)
the conditions to the Sellers' obligations under this Agreement set
forth in Article Five have not been satisfied or waived by the
Sellers as of the Closing Date; or (z) the Buyer shall not have
commenced the Tender Offer as provided in Section 1.4, shall have
terminated the Tender Offer, or shall not have effected the first
purchase of shares of Common Stock pursuant to the Tender Offer
within 60 days after the commencement thereof.
(b) Except for obligations set forth in Sections 4.2, 6.3 and 6.4,
in the event that this Agreement is terminated pursuant to the provisions of
Section 6.1(a)(i), the Sellers shall have no obligation to the Buyer and the
Buyer shall have no obligation to the Sellers under this Agreement. In the event
that the Buyer terminates this Agreement pursuant to Section 6.1(a)(ii) or the
Sellers terminate this Agreement pursuant to Section 6.1(a)(iii), the right of
the Buyer or the Sellers, as the case may be, to pursue any and all rights it
may have at law or equity or hereunder shall survive unimpaired.
SECTION 6.2 NOTICE. All notices, requests and other communications under
this Agreement will be in writing and will be deemed to have been duly given if
delivered personally, or sent by either certified or registered mail, return
receipt requested, postage prepaid, by overnight courier guaranteeing next day
delivery or by telecopier (with telephonic or machine confirmation by the
sender), addressed as follows:
(a) If to the Sellers:
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Jewelcor Management, Inc.
100 N. Wilkes-Barre Blvd.
Wiles-Barre, PA 18702
Attention: Seymour Holtzman
Tel: 570-822-6277
Fax: 570-820-7014
With a copy to:
Peter G. Smith, Esq.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, NY 10022
Tel: (212) 715-9401
Fax: (212) 715-8000
email: psmith@kramerlevin.com
or at such other address or telecopy number as the Sellers may have
advised the Buyer in writing; and
(b) If to the Buyer:
Tiffany & Co.
600 Madison Avenue, Eighth Floor
New York, NY 10022
Attention: Patrick B. Dorsey, Esq.
Tel: (212) 230-5320
Fax: (212) 230-5324
email: pdorsey@tiffany.com
With a copy to:
Steven R. Finley, Esq.
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
Tel: (212) 351-4000
Fax: (212) 351-4035
email: sfinley@gibsondunn.com
or at such other address or telecopy number as the Buyer may have
advised the Sellers in writing. All such notices, requests and other
communications shall be deemed to have been received on the date of
delivery thereof (if delivered by hand), on the third day after the
mailing thereof (if mailed), on the next day after the sending
thereof (if by overnight courier) and when receipt is confirmed as
provided above (if telecopied).
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SECTION 6.3 FEES AND EXPENSES. The Sellers will pay the fees and expenses
of counsel, accountants, financial advisors or other experts retained by the
Sellers and all expenses incurred by the Sellers incident to the negotiation,
preparation, execution, consummation, and performance of this Agreement and the
transactions contemplated hereby. The Buyer will pay the fees and expenses of
counsel, accountants, financial advisors or other experts retained by the Buyer
and all expenses incurred by the Buyer incident to the negotiation, preparation,
execution, consummation, and performance of this Agreement and the transactions
contemplated hereby.
SECTION 6.4 GOVERNING LAW. This Agreement and all disputes arising
hereunder or controversies related hereto shall be governed by and construed and
enforced in accordance with the internal, substantive laws of the State of New
York, without giving effect to the conflict of laws rules thereof that would
apply the law of any other jurisdiction. Legal proceedings commenced by the
Sellers or the Buyer arising out of any of the transactions or obligations
contemplated by this Agreement shall be brought exclusively in the federal
courts, or in the absence of federal jurisdiction in state courts, in either
case in New York, New York. The Buyer and the Sellers irrevocably and
unconditionally submit to the jurisdiction of such courts and agree to take any
and all future action necessary to submit to the jurisdiction of such courts.
The Buyer and the Sellers irrevocably waive any objection that they now have or
hereafter may have to the laying of venue of any suit, action or proceeding
brought in any such court and further irrevocably waive any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum. Final judgment against the Sellers or the Buyer in any such
suit shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment, a certified or true copy of which shall be conclusive evidence of
the fact and the amount of any indebtedness or liability of the Sellers or the
Buyer therein described.
SECTION 6.5 ENTIRE AGREEMENT; AMENDMENTS; WAIVERS. This Agreement
represents the entire agreement between the parties as to the subject matter
hereof and supersedes and cancels any prior oral or written agreement, letter of
intent or understanding related to the subject matter hereof. No provision of
this Agreement may be terminated, amended, supplemented, waived or modified
other than by an instrument in writing signed by the party against whom the
enforcement of the termination, amendment, supplement, waiver or modification is
sought.
SECTION 6.6 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The Buyer and the Sellers may not assign
or transfer any right hereunder without the prior written consent of the other
parties, and any assignment without such consent shall be void and without
effect; provided, however, that the Buyer may assign its rights and obligations
hereunder to any wholly-owned Affiliate of the Buyer.
SECTION 6.7 SPECIFIC PERFORMANCE. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. Accordingly, the parties shall be entitled to specific performance of
the terms hereof, including an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
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Agreement, this being in addition to any other remedy to which they are entitled
at law or in equity.
SECTION 6.8 NO THIRD PARTY BENEFICIARIES. Nothing contained herein,
express or implied, is intended to confer upon any person or entity other than
the parties hereto and their successors in interest and permitted assignees any
rights or remedies under or by reason of this Agreement.
SECTION 6.9 COUNTERPARTS; HEADINGS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument, and shall
become effective when one or more counterparts have been signed by each of the
parties. The headings of the Articles and Sections of this Agreement have been
inserted for convenience of reference only, are not to be considered a part of
this Agreement, and shall in no way modify or restrict any of the terms or
provisions of this Agreement.
SECTION 6.10 CERTAIN DEFINITIONS.
(a) "Affiliate" shall have the meaning ascribed to such term under
Rule 144 of the Securities Act of 1933, as amended.
(b) "Convertible Securities" shall mean any securities of the
Company convertible into, exercisable for or exchangeable for, or any rights,
warrants or options to acquire, any shares of Common Stock.
[The remainder of this page has intentionally been left blank.]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
TSAC CORP., a Delaware corporation
By: /s/ Michael J. Kowalski
------------------------
Name: Michael J. Kowalski
Title: Vice President
JEWELCOR MANAGEMENT, INC., a Nevada
corporation
By: /s/ Seymour Holtzman
---------------------
Name: Seymour Holtzman
Title:
/s/ Seymour Holtzman
-------------------------
SEYMOUR HOLTZMAN
/s/ Steven Holtzman
-------------------------
STEVEN HOLTZMAN
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Annex A
Conditions to the Tender Offer
The Buyer shall not be required to accept for payment or to pay for, and
may delay the acceptance for payment of or the payment for, any tendered shares
of Common Stock, and may amend the terms of the Tender Offer or terminate the
Tender Offer and not accept for payment any tendered shares of Common Stock, if:
(a) there shall not have been validly tendered a number of shares of
Common Stock, which together with any shares of Common Stock owned directly or
indirectly by Tiffany, including shares of Common Stock to be acquired as of the
Closing Date under the Agreement, constitute at least 90% of the outstanding
shares of Common Stock on a fully-diluted basis (including for the purposes of
such calculation all shares of Common Stock issuable upon exercise of all vested
options or other exercisable Convertible Securities, not including any Options
to be surrendered under the Stock Purchase Agreement) (the "Minimum Condition");
(b) there shall not have been validly tendered at least a majority
of the Common Stock on a fully-diluted basis, excluding shares owned by the
Buyer, its Affiliates or the Sellers (the "Majority of the Minority Condition");
(c) any applicable waiting period under the Hart Scott Rodino
Antitrust Improvements Act (the "HSR Act") or any applicable waiting periods
under any other Applicable Law (as defined below) shall not have expired or been
terminated, or any necessary approval, permit, authorization or consent of any
Governmental Authority (as defined below) shall not have been obtained;
(d) any consents from third parties shall not have been obtained,
the failure of which to be obtained would reasonably be expected to have a
material adverse effect on the financial condition, results of operations,
business or prospects (a "Material Adverse Effect") of the Company;
(e) there shall be any action taken, or any statute, rule,
regulation, legislation, interpretation, judgment, order or injunction enacted,
enforced, promulgated, amended, issued or deemed applicable to the Tender Offer,
by any Governmental Authority (other than the application of the waiting period
provisions of the HSR Act), that would reasonably be expected to, directly or
indirectly:
(i) make illegal or otherwise prohibit consummation of the
Tender Offer;
(ii) prohibit or materially limit the ownership or operation
by Tiffany or the Buyer of all or any material portion of the business or assets
of the Company or compel Tiffany or the Buyer to dispose of or hold separately
all or any material portion of the business or assets of either Tiffany or the
Buyer or of the Company, or seek to impose any material limitation on the
ability of Tiffany or the Buyer to conduct its business or own such assets, in
any such case under this clause (ii), which would reasonably be expected to have
a Material Adverse Effect on Tiffany, the Buyer or the Company, as the case may
be;
A-1
(iii) impose material limitations on the ability of Tiffany or
the Buyer to effectively acquire, hold or exercise full rights of ownership of
the Common Stock, including, without limitation, the right to vote any Common
Stock acquired by Tiffany or the Buyer pursuant to the Agreement or the Tender
Offer on all matters properly presented to the Company's shareholders;
(iv) require divestiture by Tiffany or the Buyer of any Common
Stock; or
(v) result in a Material Adverse Effect on the Company;
(f) there shall be instituted or pending any action or proceeding by
any Governmental Authority that would reasonably be expected to result in, any
of the consequences referred to in clauses (i) through (v) of paragraph (e)
above or by any third party for which there is a substantial likelihood of
resulting in any of the consequences referred to in clauses (i) through (v) of
paragraph (e) above;
(g) there shall have occurred an event, change, occurrence, or
development of a state of facts or circumstances having, or which would
reasonably be expected to have, a Material Adverse Effect on the Company;
(h) it shall have been publicly disclosed or the Buyer shall have
otherwise learned that a tender or exchange offer for 10% or more of the
outstanding Common Stock shall have been commenced or publicly proposed to be
made by another Person (as defined below), including the Company or its
Affiliates;
(i) (i) the Board of Directors of the Company or any committee
thereof shall have disapproved or recommended against the Tender Offer or
approved or recommended any acquisition or proposal for the acquisition of
Common Stock other than the Tender Offer; (ii) any Person or group shall have
entered into a definitive agreement or an agreement in principle with the
Company with respect to a proposal for the acquisition of Common Stock other
than the Tender Offer, or (iii) the Board of Directors of the Company or any
committee thereof shall have resolved to do any of the foregoing; or
(j) there shall have occurred (i) any general suspension of trading
in, or limitation on prices for, securities on the New York Stock Exchange, Inc.
or The Nasdaq National Market for a period in excess of 24 hours (excluding
suspensions or limitations resulting solely from physical damage or interference
with such exchanges not related to market conditions), (ii) the declaration of a
banking moratorium or any suspension of payments in respect of banks in the
United States (whether or not mandatory), (iii) the commencement of a war
(declared or undeclared) or other international or national calamity directly or
indirectly involving the United States, (iv) any limitation (whether or not
mandatory) by any Governmental Authority that would reasonably be expected to
have a Material Adverse Effect on either Tiffany or the Buyer and on the
extension of credit by banks or other financial institutions, (v) from the date
the Tender Offer is initiated through the date of termination or expiration of
the Tender Offer, a decline of at least 15% in the Dow Jones Industrial Average
or the Standard & Poor's
A-2
500 Index for any one week period, or (vi) in the case of any of the foregoing,
existing at the date the Tender Offer is initiated, a material acceleration or
worsening thereof.
The foregoing conditions are for the sole benefit of Tiffany and the Buyer
and, except as set forth in the Offer Documents, may be waived by Tiffany or the
Buyer, in whole or in part, at any time and from time to time, in the sole and
absolute discretion of Tiffany or the Buyer. The failure by Tiffany or the Buyer
at any time to exercise any of the foregoing rights shall not be deemed a waiver
of any right and each such right shall be deemed an ongoing right which may be
asserted at any time and from time to time.
As used herein, the term "Applicable Law" means any domestic or foreign
law, rule or regulation, order, writ, judgment, injunction, decree,
determination or award.
As used herein, the term "Governmental Authority" means any nation or
government or multinational body, any state, agency, commission or other
political subdivision thereof or any entity (including a court) exercising
executive, legislative, judicial or administration functions of or pertaining to
government.
As used herein, the term "Person" means an individual, corporation,
limited liability company, partnership, joint venture, association, trust,
unincorporated organization or other entity.
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