Exhibit 10.106
TIFFANY & CO.
REPORT ON FORM 10-K
TIFFANY AND COMPANY
AMENDED AND RESTATED
EXECUTIVE DEFERRAL PLAN
WHEREAS, effective October 1, 1989, Tiffany and Company, a New York corporation,
established an unfunded executive deferral plan for the benefit of a select
group of management or highly compensated employees;
WHEREAS, effective October 1, 1998, Tiffany and Company amended such plan to
permit additional executives and the directors of its parent corporation,
Tiffany & Co., a Delaware corporation, to participate and to provide certain
additional alternatives with respect to compensation deferred in accordance with
such plan;
WHEREAS, effective January 1, 2003, Tiffany and Company and its parent
corporation further amended such plan to (i) eliminate Education Accounts, (ii)
provide for the establishment of an unlimited number of Fixed Period Benefit
subaccounts for pre-Retirement distributions, (iii) permit elections for
deferral of Bonus Compensation to be made during the Plan Year that immediately
proceeds the Plan Year in which such Bonus Compensation would otherwise be paid
but limit deferral of Bonus Compensation to 90% of Bonus Compensation, (iv)
allow the Administrator to make hardship distributions in circumstances that may
or may not result from a Disability, (v) allow Participants to make daily
changes in the Investment Funds used to value their respective Deferred Benefit
Accounts, (vi) vary the Investment Funds available for such purposes and (vii)
extend the Enrollment Period to the months of November and December each year.
WHEREAS, effective November 1, 2005, Tiffany and Company and its parent
corporation further amended such plan to (i) permit executives of Iridesse, Inc.
to participate, (ii) bring the plan into compliance with Section 409A of the
Code as follows: (a) by requiring a recently Eligible
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
Employee who wishes to participate in the year he becomes eligible to make a
written election to become a Participant within thirty (30) days of his becoming
eligible; (b) by requiring that Participants who wish to defer Bonus
Compensation elect to do so no later than six months before the end of the
fiscal year to which such Bonus Compensation relates; (c) by requiring that
elections to change the time and form of a distribution (i) be made at least
twelve months in advance, and (ii) not defer distribution for a period of less
than five years from the date such distribution would otherwise have been made;
(d) requiring that Specified Employees not receive certain distributions
resulting from a Termination of Service earlier than six months after the date
of the Termination of Service; (e) providing that, in the event of plan
termination, the Employer shall pay a benefit to the Participant or his
beneficiary as otherwise required under the plan; and (f) decreasing the minimum
Retirement Account balance eligible for distribution on an installment basis;
and (iii) make other miscellaneous modifications.
WHEREAS, the purpose of the plan is to provide selected executives and directors
an opportunity to defer a portion of their compensation in a manner best suited
to each participant's individual needs.
NOW, THEREFORE, to carry the above intentions into effect, Tiffany and Company
does enter into this Amended and Restated Plan effective November 1, 2005.
This Plan shall be known as the
TIFFANY AND COMPANY
EXECUTIVE DEFERRAL PLAN
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
ARTICLE I
DEFINITIONS
"ADMINISTRATOR" means the individual appointed to administer the Plan pursuant
to Article VII.
"BASE COMPENSATION" means a Participant's salary and wages, including Executive
Deferral Contributions made hereunder and any pretax elective deferrals to any
Employer sponsored retirement savings plan or cafeteria plan, qualified pursuant
to Section 401(k) or Section 125 of the Code, but excluding bonuses and
overtime, all other Employer contributions to benefit plans, remuneration
attributable to Employer sponsored stock option plans and all other forms of
remuneration or reimbursement.
"BENEFICIARY" means the person, persons, trust or other entity, designated by
written revocable designation filed with the Administrator by the Participant to
receive payments in the event of the Participant's death. If a designated
Beneficiary does not survive the Participant or if no Beneficiary is designated
as provided above, the Beneficiary shall be the legal representative of the
Participant's estate. If a designated Beneficiary survives the Participant but
dies before payment in full of benefits under this Plan has been made, the legal
representative of such Beneficiary's estate shall become the Beneficiary.
References to a Participant in this Plan in connection with payments hereunder
shall also refer to such Participant's Beneficiary unless the context clearly
requires otherwise.
"BENEFIT DISTRIBUTION DATE" means a future date (or dates) selected by a
Participant during the applicable Enrollment Period within guidelines
established by the Administrator, as adjusted as permitted in this Plan, on
which the Participant shall be entitled to a benefit pursuant to this Plan equal
to all or a designated portion of the balance of his Fixed Period Benefit
Account.
-Page 1-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
"BONUS COMPENSATION" means cash compensation paid to a Participant, excluding
Base Compensation, under the Employer's bonus program or programs (including,
but not limited to cash Incentive Awards under Section 8 of Parent's 1998
Employee Incentive Plan or Section 8 of Parent's 2005 Incentive Plan), as such
may exist and be modified from time to time, and payable to a Participant
following the conclusion of the Employer's fiscal year in respect of service
performed at any time during such fiscal year.
"COMMITTEE" means the Board of Directors of Tiffany, which shall have authority
over this Plan.
"COMPENSATION" means Base Compensation, Bonus Compensation and Directors
Compensation in the aggregate.
"CODE" means the Internal Revenue Code of 1986, as amended from time to time.
"DEFERRAL AGREEMENT" means a written agreement between a Participant and the
Employer, whereby a Participant agrees to defer a portion of his Compensation
and the Employer agrees to provide benefits pursuant to the provisions of this
Plan.
"DEFERRED BENEFIT ACCOUNTS" mean Retirement Accounts and Scheduled In-Service
Withdrawal Accounts.
"DETERMINATION DATE" shall mean December 31, March 31, June 30 and September 30
of each calendar year and, for each Participant, his date of death, Retirement,
or other termination of employment with Employer and, with respect to
Independent Directors only, termination of service as a Director.
"DIRECTOR" means a member of Parent's Board of Directors.
-Page 2-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
"DIRECTORS COMPENSATION" means a Director's annual retainer and any incremental
annual retainer paid or payable by Parent to Director for service as a Director,
including any per-meeting-attended compensation, but excluding Parent's
contributions to benefit and retirement plans, remuneration attributable to
Parent-sponsored stock option plans and all other forms of remuneration or
reimbursement.
"DISABILITY" means a condition such that a Participant is (i) unable to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months, or (ii) by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months, receiving income replacement benefits for a period
of not less than three months under an accident or health plan covering
employees of Participant's Employer.
"EDUCATION ACCOUNT" means a Deferred Benefit Account established pursuant to
Section 4.1.
"EFFECTIVE DATE" means October 1, 1989.
"ELIGIBLE STUDENT" means an individual who is a relative of a Participant and
who is younger than the age of 14 when a subaccount is initially established,
pursuant to Section 4.7.
"ELIGIBLE EMPLOYEES" means Directors, all officers of the Employer,
"director"-level employees of Employer, and such other management and other
highly compensated employees of the Employer as identified and approved by the
Committee.
"EMPLOYER" means Tiffany, Parent, and Irridesse, or any other business entity
which adopts this Plan with consent of the Board of Directors of Parent.
-Page 3-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
"ENROLLMENT PERIOD" means, with respect to any Plan Year, the months of November
and December immediately preceding such Plan Year, or, with respect to a person
who becomes an Eligible Employee during the course of a Plan Year in respect of
such Plan Year, the thirty day period following the date he becomes an Eligible
Employee.
"EXECUTIVE DEFERRAL CONTRIBUTION" means the Plan contribution described in
Section 3.2.
"FIXED PERIOD BENEFIT ACCOUNT" means a Deferred Benefit Account established
pursuant to Section 4.1(C).
"INDEPENDENT DIRECTOR" means a Director who is not an employee of Employer at
the time Participation in this Plan commences.
"INVESTMENT FUND" OR "FUND" means any one of the investment funds described in
Schedule 4.5 which shall serve as means to measure value increases or decreases
with respect to a Participant's Deferred Benefit Accounts.
"IRIDESSE" means Iridesse, Inc., a Delaware corporation, and any successor
organization.
"PARENT" means Tiffany & Co., a Delaware corporation, and any successor
organization.
"PARTICIPANT" means any Eligible Employee who has met the conditions for
participation as set forth in Article II.
"PERMITTED RETIREMENT AGE" means that date on which the Participant has attained
age 55, provided that if the Participant is an Independent Director the
Permitted Retirement Age for such Participant shall be his age on the date his
participation in the Plan commenced.
-Page 4-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
"PLAN" means the Tiffany and Company Executive Deferral Plan as described in
this instrument, as amended from time to time.
"PLAN YEAR" means the period from the November 1, 1989 through December 31, 1989
and thereafter, the twelve (12) consecutive month period beginning on each
January 1 and ending on each December 31.
"PRE-2005 BALANCES" means Deferred Benefit Account balances as of December 31,
2004, including any Investment Fund performance subsequent to December 31, 2004
(i) credited to such Accounts and (ii) attributable to balances as of December
31, 2004.
"RETIREMENT" means any severance from full-time employment by a Participant
after attaining his Permitted Retirement Age, provided that if the Participant
is an Independent Director, Retirement shall mean any cessation of service as a
Director after attaining his Permitted Retirement Age. Employment shall be
deemed to be "full-time" provided that the Participant is employed by Employer
on a salaried basis.
"SCHEDULED IN-SERVICE WITHDRAWAL ACCOUNT" means an Education Account or a Fixed
Period Benefit Account, provided that, on and after January 1, 2003, all
Education Accounts shall be converted to Fixed Period Benefit Accounts.
"SPECIFIED AMOUNT" means $130,000, adjusted as provided in Section 416(i)(1)(A)
of the Code.
"SPECIFIED EMPLOYEE" means (a) a Participant who is (i) an officer of the
Employer by which such Participant is employed and (ii) who has an annual
compensation greater than the Specified Amount, (b) a Participant who is a
five-percent owner of the Employer by which such Participant is employed, or (c)
a Participant who is a one-percent owner of the Employer by which such
Participant is employed and having an annual compensation from the Employer of
more than
-Page 5-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
$150,000. Status as a Specified Employee shall be determined as of the December
31 most recently preceding Participant's Termination of Service date.
"TERMINATION OF SERVICE" means, with respect to a Participant who is not an
Independent Director, a termination of employment with Participant's Employer,
provided that termination of employment with one Employer for the purpose of,
and followed promptly by, employment with another Employer, shall not be deemed
a Termination of Service. For purposes of this definition, a Participant on a
leave of absence authorized by Employer or required by applicable law shall be
deemed to remain employed. With respect to a Participant who is an Independent
Director, a "Termination of Service" shall occur when such Independent Director
ceases to be a Director.
"TIFFANY" means Tiffany and Company, a New York corporation, and any successor
organization.
"RETIREMENT ACCOUNT" means a Deferred Benefit Account established pursuant to
Section 4.1.
"VESTED" means that portion of a Participant's Deferred Benefit Accounts to
which the Participant has a nonforfeitable right as defined in Section 5.1.
-Page 6-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
ARTICLE II
MEMBERSHIP IN THE PLAN
2.1 Commencement of Participation. Each Eligible Employee who is an Eligible
Employee at any time during the Enrollment Period for any Plan Year shall
be eligible to become a Participant in the Plan as of the first day of such
Plan Year. Notwithstanding the foregoing, but subject to the limitation
expressed in Subsection 3.2 F below, each employee or Director who first
becomes an Eligible Employee throughout the course of the Plan Year shall
be eligible to become a Participant with respect to said Plan Year as of
the first day of the month that is at least thirty (30) days after he is
designated as an Eligible Employee provided that he shall have made a
written election to become a Participant within thirty (30) days of such
designation and provided further that such election shall not be effective
with respect to Compensation earned for services performed prior to the
date of such election.
2.2 Procedure For and Effect of Admission. Each individual who becomes eligible
for admission to participate in this Plan shall complete such forms and
provide such data as are reasonably required by the Employer as a condition
of such admission. By becoming a Participant, each individual shall for all
purposes be deemed conclusively to have assented to the provisions of this
Plan and all amendments hereto.
2.3 Cessation of Participation. A Participant shall cease to be a Participant
when he incurs a Termination of Service. Such persons, and all active
Participants on the termination of the Plan, shall be deemed "former active
Participants". Notwithstanding the foregoing, a former active Participant
will be deemed a Participant, for all purposes of this Plan except with
respect to contributions as described in Article III, as long as such
former active Participant retains a benefit pursuant to the terms of
Article VI.
-Page 7-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
ARTICLE III
PLAN CONTRIBUTIONS
3.1 Executive Deferral Contribution. For each Plan Year, each Eligible Employee
may, by timely filing a Deferral Agreement with the Administrator,
authorize the Employer to reduce his Base Compensation, his Bonus
Compensation, his Directors Compensation or any combination of the
foregoing, by fixed percentages, and to have corresponding fixed dollar
amounts credited to his Deferred Benefit Accounts in accordance with
Section 4.2. Credit to Deferred Benefit Accounts shall be made in equal
installments for each pay period in respect of Base Compensation reductions
and in a lump sum for each payment in respect of Bonus Compensation and
Directors Compensation reductions. Subject to the rules set forth in
Section 3.2 below, each Eligible Employee shall file a Deferral Agreement
with the Administrator during the applicable Enrollment Period for each
Plan Year.
3.2 Rules Governing Executive Deferral Contributions.
A. Throughout any one Plan Year, a Participant may defer all or any
portion of his Compensation, except that a Participant may not defer:
less than $2,000 in any Plan Year ending on or before December 31,
2002 or less than $1,000 in any other Plan Year (except Plan Years in
which the Participant elects not to defer any portion of his
Compensation); more than 50% of Base Compensation in any Plan Year; or
more than 90% of Bonus Compensation payable in any Plan Year ending
after December 31, 2002.
B. The amount of Compensation that a Participant elects to defer shall be
credited to the Participant's Deferred Benefit Accounts during each
Plan Year on or about that date on which the Participant would have,
but for his deferral election, have been paid such Compensation.
-Page 8-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
C. An election to defer Compensation pursuant to this Plan is irrevocable
and shall continue until the earlier of: (i) the Participant's
Termination of Service, or (ii) the end of the Plan Year for which the
deferral is effective.
D. In respect of Bonus Compensation, an election to defer must be made no
later than six months before the end of the fiscal year with respect
to which such Bonus Compensation relates.
E. Except as expressly provided in subsection D. above, each Eligible
Employee shall file a Deferral Agreement with the Administrator during
the applicable Enrollment Period for the Plan Year in question.
F. No person who becomes an Eligible Employee during the course of
Employer's Fiscal Year may file a Deferral Agreement with respect to
Bonus Compensation for that Fiscal Year except as expressly provided
in subsection D. above.
-Page 9-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
ARTICLE IV
PARTICIPANT'S ACCOUNTS
4.1 Establishment of Accounts. The following Deferred Benefit Accounts shall be
established with respect to each Participant:
A. Retirement Account,
B. Scheduled In-Service Withdrawal Accounts.
All contributions on behalf of a Participant shall be deposited to the
appropriate Deferred Benefit Account, in accordance with Section 4.2.
4.2 Deferred Benefit Allocation. Each Eligible Employee shall submit to the
Administrator, before the close of the Enrollment Period for each Plan
Year, a written statement specifying the Eligible Employee's allocation of
anticipated contributions with respect to his Deferred Benefit Accounts.
4.3 Suballocation Within the Deferred Benefit Accounts.
A. Retirement Subaccounts. In the event a Participant shall allocate a
portion of his anticipated contributions to his Retirement Account, he
may, during each applicable Enrollment Period, direct that portion of
his anticipated contributions to (i) a lump sum subaccount or to (ii)
one of three installment subaccounts.
Each Participant may only have one such Retirement subaccount.
-Page 10-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
Subject to Section 6.1.F below, the lump sum Retirement subaccount
will be paid out in a lump sum within ninety (90) days of Retirement,
and the installment Retirement subaccount will be paid in five (5),
ten (10), fifteen (15) or twenty (20) annual installments, all
pursuant to Section 6.1. In the absence of such designation,
contributions for that Plan Year will be paid out in a lump sum as
aforesaid.
Participants may, by written election made before December 31, 2006,
redirect contributions made before the date of such election to
Participant's Retirement Account from the lump sum Retirement
subaccount or any of the three installment Retirement subaccounts to
the lump sum account or to any of the three installment subaccounts,
provided (i) that each Participant shall, at the conclusion of such
redirection process, have only one Retirement subaccount; and (ii)
that such redirection shall not affect payments the Participant would
otherwise receive in calendar year 2005 or 2006.
B. Education Subaccounts. In the event a Participant shall allocate a
portion of his anticipated contributions to his Education Account, the
Participant may further allocate amongst subaccounts on behalf of
Eligible Students. Said allocation shall be made in writing prior to
the beginning of the Plan Year on Participant's Deferral Agreement, or
such other forms as are required by the Administrator. In the absence
of such suballocation, all contributions to the Participant's
Education Account shall be equally allocated among the Participant's
Education subaccounts. A Participant's election pursuant to Section
4.5 shall apply uniformly to each subaccount. A Participant, in any
one Plan Year, may not allocate less than $1,000 (except in Plan Years
in which the Participant elects not to defer any portion of his
Compensation) to any one Education subaccount.
-Page 11-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
Notwithstanding the foregoing, no Education Accounts shall be
established effective following the Plan Year ending December 31,
2002, and all Education Accounts in effect as of such date shall be
converted to Fixed Period Benefit Accounts or subaccounts by filing a
conversion schedule with the Administrator by which benefits payable
in respect of each such Education Account and subaccount shall become
payable upon a specific Benefit Distribution Date provided, however,
that no conversion schedule shall permit amounts accumulated pursuant
to the Plan prior to January 1, 2003 to be paid to a Participant or
Beneficiary prior to the time such Participant or Beneficiary would
have been entitled to such payment under the Plan as it existed prior
to the amendments made effective January 1, 2003.
C. Fixed Period Benefit Subaccounts. In the event a Participant shall
allocate a portion of his anticipated contributions to his Fixed
Period Benefit Account, the Participant may further allocate amongst
subaccounts differentiated by Benefit Distribution Dates. Said
allocation shall be made in writing prior to the beginning of the Plan
Year on Participant's Deferral Agreement, or such other forms as are
required by the Administrator, provided that (i) each Participant
shall have a one-time option in respect of each of his Benefit
Distribution Dates to change such Benefit Distribution Date to a date
at least five years subsequent to such original Benefit Distribution
Date and (ii) such option is exercised, if at all, at least one year
prior to the original Benefit Distribution Date by written notice to
the Administrator. In the absence of such suballocation, all
contributions to the Participant's Fixed Period Benefit Account shall
be equally allocated among Participant's subaccounts. A Participant's
election pursuant to Section 4.5 shall apply uniformly to each
subaccount. A Participant, in any one Plan Year, may not allocate less
than $1,000 (except in Plan Years in which the Participant elects not
to defer any portion of his Compensation) to any one Fixed Period
subaccount. For elections made prior to November of 2002, a
Participant shall not elect a Benefit Distribution Date with respect
to the Fixed Period Benefit Account
-Page 12-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
which occurs prior to twenty-four (24) months from the date on which
the first contribution to such subaccount is first credited except as
provided in Section 4.1 above. For elections made in or after November
of 2002, a Participant shall not elect a Benefit Distribution Date
with respect to a Scheduled In-Service Withdrawal Account which occurs
prior to twenty-four (24) months from the last day in the Plan Year in
which such election is made.
4.4 Irrevocable Benefit Allocation. Once an Eligible Employee has allocated
anticipated contributions under the Plan and the Plan Year has begun, he
may not modify, alter, amend or revoke said allocations. Notwithstanding, a
Participant may, prior to the commencement of a new Plan Year, elect to
modify, alter, amend or revoke his future allocations to his Deferred
Benefit Accounts to the extent the Administrator shall provide, effective
the first day of such new Plan Year.
4.5 Directed Valuation of Deferred Benefit Accounts. As provided herein, a
participant may direct that his Deferred Benefit Accounts be valued, in
accordance with Section 4.7, as if the account was invested in one or more
of the Investment Funds listed in Schedule 4.5 attached. The Committee may,
from time to time, add additional Investment Funds to Schedule 4.5. A
Participant shall submit to the Plan Administrator in writing his
investment selection for evaluation purposes. The Participant may select
one or more investment funds in multiples of 1%. A Participant may make a
separate selection with respect to each Deferred Benefit Account.
Investment Fund elections may be made daily.
4.6 Administration of Investments. The investment gain or loss with respect to
contributions made to the Deferred Benefit Accounts on behalf of a
Participant shall continue to be determined in the manner selected by the
Participant, pursuant to Section 4.5, until a new designation is filed with
the Plan Administrator. If any Participant fails to file a designation, he
shall be deemed to have designated the first Investment Fund listed in
-Page 13-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
Schedule 4.5 attached. A designation filed by a Participant changing his
Investment Funds shall apply to future contributions and/or amounts already
accumulated in his Deferred Benefit Accounts. A Participant may change his
investment selection four (4) times, at any time, throughout the course of
each Plan Year.
4.7 Valuation of Deferred Benefit Accounts. The Deferred Benefit Accounts of
each Participant shall be valued, on any date prior to complete
distribution of all benefits due Participant under this Plan, based upon
the performance of the Investment Fund(s) selected by the Participant. Such
valuation shall reflect the net asset value expressed per share of the
designated Investment Fund(s). The fair market value of an Investment Fund
shall be determined by the Administrator. It shall represent the fair
market value of all securities or other property held for the respective
fund, plus cash and accrued earnings, less accrued expenses and proper
charges against the fund. Each Deferred Benefit Account shall be valued
separately. A valuation summary shall be prepared on each Determination
Date.
4.8 Investment Obligation of the Employer. Benefits are payable as they become
due irrespective of any actual investments the Employer may make to meet
its obligations. Neither the Employer, nor any trustee (in the event the
Employer elects to use a grantor trust to accumulate funds) shall be
obligated to purchase or maintain any asset, and any reference to
investments or Investment Funds is solely for the purpose of computing the
value of benefits. To the extent a Participant or any person acquires a
right to receive payments from the Employer under this Plan, such right
shall be no greater than the right of any unsecured creditor of the
Employer.
4.9 Change of Funds. In the event that any of the Investment Funds designated
in Schedule 4.5 attached materially changes its investment objectives,
adopts a plan of liquidation, ceases to report its net asset values or
otherwise ceases to exist, the Employer may amend this Plan by designating
new or additional funds for the purposes of Section 4.7 and each
-Page 14-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
Participant shall redirect the valuation of his or her Deferred Benefit
Accounts effective with the date of such amendment.
-Page 15-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
ARTICLE V
VESTING
5.1 Vesting Schedule. A Participant shall have a fully Vested interest with
respect to Executive Deferral Contributions and Investment Fund performance
credited to his Deferred Benefit Accounts, in all instances and at all
times.
ARTICLE VI
BENEFITS/DISTRIBUTIONS
6.1 Termination of Service.
A. If a Participant incurs a Termination of Service for any reason, the
Employer shall pay to the Participant, or to the Participant's
Beneficiary if applicable, a benefit equal to the value of
Participant's Deferred Benefit Accounts, determined pursuant to
Section 4.7 and Section 5.1 on such distribution dates as may be
applicable under this Article VI.
B. Subject to Section 6.1.F below, with the exception of funds allocated
to the Participant's Retirement Account, if the Participant incurs a
Termination of Service for any reason, the benefit hereunder,
including funds allocated to the Participant's Scheduled In-Service
Withdrawal Accounts, shall be paid to the Participant or the
Participant's beneficiary, as applicable, as a lump sum within ninety
(90) days of the date of such Termination of Service.
-Page 16-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
C. Subject to Section 6.1.F below, with respect to funds allocated to the
Participant's Retirement Account, if the Participant incurs a
Termination of Service for any reason other than his Retirement or
Disability, the benefit hereunder allocated to such Retirement
Account, shall be paid to the Participant or the Participant's
beneficiary, as applicable, as a lump sum within ninety (90) days of
the date of such Termination of Service.
D. Subject to Section 6.1.F below, with respect to funds allocated to the
Participant's Retirement Account, if the Participant incurs a
Termination of Service by reason of his Retirement, the benefit
hereunder allocated to such Retirement Account, shall be paid to the
Participant or the Participant's beneficiary, as provided in Section
6.2 below.
E. With respect to funds allocated to the Participant's Retirement
Account, if the Participant incurs a Termination of Service by reason
of his Disability, the Participant shall remain as a Participant in
the Plan but shall be ineligible for further contributions to his
Deferred Benefit Accounts as described in Article III. In that
circumstance, funds allocated to the Participant's Retirement Account
shall be paid to him commencing on his 65th birthday in the form he
elected pursuant to Section 4.A.
F. Notwithstanding anything stated in this Plan to the contrary, if a
Participant who is a Specified Employee incurs a Termination of
Service, other than by reason of such Participant's death or
Disability, no distribution of, payment from or benefit in lieu of
Participant's Deferred Benefit Accounts other than Pre-2005 Balances
shall be made until the expiration of a period of six months following
such Separation of Service, and any payments otherwise scheduled under
this Plan during such six-month period shall be deemed deferred until
the earlier of the
-Page 17-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
expiration of such six-month period or such Participant's death. On
the expiration of such six month period (or such Participant's death)
all such deferred payments shall be promptly made and all other
payments shall be made as otherwise scheduled or provided for herein.
6.2 Retirement Account - Form of Payment:
A. Subject to Section 6.1F, if the Participant's Termination of Service
shall occur as a result of Participant's Retirement or Disability, and
the Participant has elected deferrals to a lump sum subaccount under
Section 4.3A, the value of such subaccount is to be paid to the
Participant as soon as administratively possible following his
Retirement, or, in the case of Disability, following his 65th
birthday. Subject to Section 6.1F, if the Participant's Termination of
Service shall occur as a result of Participant's Retirement or
Disability, and the Participant has elected deferrals to an
installment subaccount under Section 4.3A, the benefit in respect of
such subaccount shall be paid by Employer to Participant in five, ten,
15 or 20 annual installments beginning as soon as administratively
possible after his Retirement, or in the case of Disability, after his
65th birthday, and with each subsequent annual installment to be paid
on or before February 1 of each subsequent year, determined as
follows:
FIVE ANNUAL INSTALLMENTS
PERCENTAGE OF INSTALLMENT
BENEFIT YEAR RETIREMENT ACCOUNT
- ------------ -------------------------
1 (Year of Retirement/65th birthday) 20%
2 25%
3 33%
4 50%
5 100%
-Page 18-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
TEN ANNUAL INSTALLMENTS
PERCENTAGE OF INSTALLMENT
BENEFIT YEAR RETIREMENT ACCOUNT
- ------------ -------------------------
1 (Year of Retirement/65th birthday) 10%
2 11%
3 13%
4 14%
5 17%
6 20%
7 25%
8 33%
9 50%
10 100%
FIFTEEN ANNUAL INSTALLMENTS
PERCENTAGE OF INSTALLMENT
BENEFIT YEAR RETIREMENT ACCOUNT
- ------------ -------------------------
1 (Year of Retirement /65th birthday) 7%
2 7%
3 8%
4 8%
5 9%
6 10%
7 11%
8 12%
9 12%
10 17%
11 20%
12 25%
13 33%
14 50%
15 100%
-Page 19-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
TWENTY ANNUAL INSTALLMENTS
PERCENTAGE OF INSTALLMENT
BENEFIT YEAR RETIREMENT ACCOUNT
- ------------ -------------------------
1 (Year of Retirement/65th birthday) 5%
2 5%
3 6%
4 6%
5 6%
6 7%
7 7%
8 8%
9 8%
10 9%
11 10%
12 11%
13 13%
14 14%
15 17%
16 20%
17 25%
18 33%
19 50%
20 100%
In the event a Participant receiving such installments dies before all
installments are paid, Beneficiary shall receive the balance remaining
in such subaccount in a lump sum.
B. Subject to Section 6.1.F, notwithstanding any provision to the
contrary, if at the time benefits are to commence, the Participant's
Retirement Account has a value less than $10,000, the Participant's
benefit hereunder shall be paid to the Participant as a lump sum
within ninety (90) days of termination.
-Page 20-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
6.3 Education Account.
A. If a Participant does not incur a Termination of Service prior to
January 1 of the calendar year in which an Eligible Student of the
Participant attains a Determination Age, the Employer shall pay to the
Participant a benefit, as soon as administratively possible,
determined as follows:
Eligible Student's Percentage of Eligible
Determination Age Student's Subaccount
- ------------------ ----------------------
18 25%
19 33%
20 50%
21 100%
B. Subject to Section 6.1F if a Participant should incur a Termination of
Service for any reason while having a balance in his Education
Account, the Vested portion of the balance shall be distributed to the
Participant, or Beneficiary if applicable, in accordance with Section
6.1.
C. Notwithstanding any provision to the contrary, if, on the January 1 of
the calendar year in which an Eligible Student of Participant attains
age 18, the Eligible Student's subaccount has a balance of less than
$20,000, then said balance shall be paid to the Participant as soon as
administratively possible.
6.4 Fixed Period Benefit Account.
A. If a Participant does not incur a Termination of Service prior to a
designated Benefit Distribution Date, the Employer shall pay to the
Participant a benefit equal to the balance of the Participant's
subaccount which has been earmarked with respect to said Benefit
Distribution Date, provided, however, that each Participant shall have
a one-
-Page 21-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
time option in respect of each such Benefit Distribution Date, to
postpone the Benefit Distribution Date for no less than five years,
such option to be exercised, if at all, by written notice give to the
Administrator no less than one year earlier than such original Benefit
Distribution Date.
B. Subject to Section 6.1.F, if a Participant should incur a Termination
of Service for any reason while having a balance in his Fixed Period
Benefit Account, the balance shall be distributed to the Participant,
or Beneficiary, if applicable, in accordance with Section 6.1
-Page 22-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
6.5 Unforeseeable Emergency Distribution.
A. In the event of an unforeseen emergency, a Participant may apply in
writing to the Committee for withdrawal against his Deferred Benefit
Accounts. The withdrawal shall only be allowed at the discretion of
the Committee and for purposes which constitute an "unforeseeable
emergency" as defined in Section 409A(a)(2)(B)(ii)(I) of the Code and
regulations promulgated thereunder. For the purpose of withdrawals,
the value of all Deferred Benefit Accounts shall be determined on the
Determination Date next following the date as of which the application
is approved by the Committee and shall be paid as soon as practical
thereafter. The Committee shall approve such application only to
relieve an unforeseeable emergency and shall make no distribution in
excess of the amounts necessary to satisfy such emergency plus amounts
necessary to pay taxes reasonably anticipated by the Participant as a
result of the distribution, after taking into account the extent to
which such hardship is or may be relieved through reimbursement or
compensation by insurance or otherwise or by liquidation of the
Participant's assets (to the extent the liquidation of such assets
would not itself cause severe financial hardship). In making a
determination whether to approve any such application, the Committee
may require the Participant to submit such proof as to the existence
of such unforeseeable emergency as the Committee shall deem necessary
and shall consider all relevant facts and circumstances presented by
the Participant. All determinations under this Section shall be based
upon uniform and nondiscriminatory rules and standards applicable to
all Participants similarly situated and shall be final, conclusive and
binding on all interested parties.
-Page 23-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
B. To the extent a withdrawal shall be permitted pursuant to this Section
6.5, the Participant's Deferred Benefit Accounts shall be
correspondingly reduced in the following order:
1. The Fixed Period Benefit Account,
2. The Education Account,
3. The Retirement Account.
6.6 Tax Withholding. To the extent required by the law in effect at the time
benefits are distributed pursuant to this Article VI, the Employer or its
agents shall withhold any taxes required by the federal or any state or
local government from payments made hereunder.
-Page 24-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
ARTICLE VII
ADMINISTRATION
7.1 Appointment of Administrator. Tiffany shall appoint, on behalf of all
Participants, an Administrator. The Administrator may be removed by Tiffany
at any time and he may resign at any time by submitting his resignation in
writing to Tiffany. A new Administrator shall be appointed as soon as
possible in the event that the Administrator is removed or resigns from his
position. Any person so appointed shall signify his acceptance by filing a
written acceptance with Tiffany.
7.2 Administrator's Responsibilities. The Administrator is responsible for the
day to day administration of the Plan. He may appoint other persons or
entities to perform any of his fiduciary functions. Such appointment shall
be made and accepted by the appointee in writing and shall be effective
upon the written approval of Tiffany. The Administrator and any such
appointee may employ advisors and other persons necessary or convenient to
help him carry out his duties including his fiduciary duties. The
Administrator shall have the right to remove any such appointee from his
position. Any person, group of persons or entity may serve in more than one
fiduciary capacity.
7.3 Records and Accounts. The Administrator shall maintain or shall cause to be
maintained accurate and detailed records and accounts of Participants and
of their rights under the Plan and of all investments, receipts,
disbursements and other transactions. Such accounts, books and records
relating thereto shall be open at all reasonable times to inspection and
audit by the Employer and by persons designated thereby.
7.4 Administrator's Specific Powers and Duties. In addition to any powers,
rights and duties set forth elsewhere in the Plan, the Administrator shall
have the following discretionary powers and duties:
-Page 25-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
A. To adopt such rules and regulations consistent with the provisions of
the Plan;
B. To enforce the Plan in accordance with its terms and any rules and
regulations he establishes;
C. To maintain records concerning the Plan sufficient to prepare reports,
returns and other information required by the Plan or by law;
D. To construe and interpret the Plan and to resolve all questions
arising under the Plan;
E. To direct the Employer to pay benefits under the Plan, and to give
such other directions and instructions as may be necessary for the
proper administration of the Plan;
F. To be responsible for the preparation, filing and disclosure on behalf
of the Plan of such documents and reports as are required by any
applicable federal or state law.
7.5 Employer's Responsibility to Administrator. The Employer shall furnish the
Administrator such data and information as he may require. The records of
the Employer shall be determinative of each Participant's period of
employment, termination of employment and the reason therefor, leave of
absence, reemployment, years of service, personal data, and compensation
reductions. Participants and their Beneficiaries shall furnish to the
Administrator such evidence, data, or information, and execute such
documents as the Administrator requests.
7.6 Liability. Neither the Administrator nor the Employer shall be liable to
any person for any action taken or omitted in connection with the
administration of this Plan unless attributable to his own fraud or willful
misconduct; nor shall the Employer be liable to any
-Page 26-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
person for such action unless attributable to fraud or willful misconduct
on the part of the director, officer or employee of the Employer.
7.7 Procedure to Claim Benefits. Each Participant or Beneficiary must claim any
benefit to which he is entitled under this Plan by a written notification
to the Administrator. If a claim is denied, it must be denied within a
reasonable period of time, and be contained in a written notice stating the
following:
A. The specific reason for the denial,
B. Specific reference to the Plan Provision on which the denial is based,
C. Description of additional information necessary for the claimant to
present his claim, if any, and an explanation of why such material is
necessary, and
D. An explanation of the Plan's claim procedure.
The claimant will have sixty (60) days to request a review of the denial by
the Administrator, who will provide a full and fair review. The request for
review must be written and submitted to the same person who handles initial
claims. The claimant may review pertinent documents, and he may submit
issues and comments in writing. The decision by the Administrator with
respect to the review must be given within sixty (60) days after receipt of
the request, unless special circumstances require an extension (such as for
a hearing). In no event shall the decision be delayed beyond one hundred
twenty (120) days after receipt of the request for review. The decision
shall be written in a manner calculated to be understood by the claimant,
and it shall include specific reasons and refer to specific Plan provisions
as to its effect.
-Page 27-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 Plan Amendment. The Plan may be amended in whole or in part by Tiffany and
Parent at any time; provided that no such amendment shall reduce any
Participant's Vested Deferred Benefits. Notice of any such amendment shall
be given in writing to each Participant and each Beneficiary of a deceased
Participant.
8.2 No Premature Distribution. No amendment hereto shall permit amounts
accumulated pursuant to the Plan prior to the amendment to be paid to a
Participant or Beneficiary prior to the time he would otherwise be entitled
thereto.
8.3 Termination of the Plan. Tiffany reserves the right to terminate the Plan
and/or the Deferral Agreements pertaining to Participants at any time in
the event that Tiffany, in its sole discretion, shall determine that the
economics of the Plan have been adversely and materially affected by a
change in the tax laws, other governmental action or other event beyond the
control of the Participant and Tiffany or that the termination of the Plan
is otherwise in the best interest of the Tiffany.
8.4 Effect of Termination. In the event of Plan termination pursuant to Section
8.3, the Employer shall pay a benefit to the Participant or the Beneficiary
of any deceased Participant as otherwise required under the Plan provided
that the Employer retains the discretion, in the event of a Plan
termination meeting the requirements of Section 1.409A-3 (h)(2)(viii) of
the proposed regulations issued by the Internal Revenue Service on
September 29, 2005, or any final regulations thereafter adopted in place
thereof, to pay a benefit to each Participant or the Beneficiary of any
deceased Participant, in lieu of other benefits under this Plan, equal to
the full value of Participant's Deferred Benefit Accounts determined
pursuant to Section 4.7, provided, however, that in the event that
installment
-Page 28-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
payments pursuant to Section 6.2 have commenced in respect of a
Participant, such installment payments will continue to be made to such
Participant and no premature distribution will be made in respect of such
installment payments to such Participant.
8.5 Adverse Determination. Notwithstanding anything stated to the contrary in
this Plan, if at any time, as a result of a Final Determination, a tax is
payable by a Participant in respect of any benefit under this Plan prior to
payment under the terms of this Plan of such benefit, then Employer shall
pay to the Participant who is required to pay such tax the amount of such
tax and such Participant's Deferred Benefits shall be reduced by the amount
of such tax. Employer reserves the right, in its sole discretion, to
allocate the amount of such tax among the various Deferred Benefit Accounts
of any Participant who is required to pay such tax. For the purposes of
this Section 8.5 the term "Final Determination" means (i) an assessment of
tax by the United States Internal Revenue Service addressed to the
Participant or his Beneficiary which is not timely appealed to the courts;
(ii) a final determination by the United States Tax Court or any other
Federal Court, the time for an appeal thereof having expired or been
waived; or (iii) an opinion by Employer's counsel, addressed to Employer
and in form and substance satisfactory to Employer, to the effect that
amounts payable under the Plan are subject to Federal income tax to the
Participant or his Beneficiary prior to payment under the terms of the
Plan. No Final Determination shall be deemed to have occurred until the
Employer has actually received a copy of the assessment, court order or
opinion which forms the basis thereof and such other documents as it may
reasonably request.
-Page 29-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
ARTICLE IX
MISCELLANEOUS
9.1 Supplemental Benefits. The benefits provided for the Participants under
this Plan are in addition to benefits provided by any other plan or program
of the Employer and, except as otherwise expressly provided for herein, the
benefits of this Plan shall supplement and shall not supersede any plan or
agreement between the Employer and any Participant.
9.2 Governing Law. The Plan shall be governed and construed under the laws of
the State of New York as in effect at the time of its adoption.
9.3 Jurisdiction. The courts of the State of New York shall have exclusive
jurisdiction in any or all actions arising under this Plan.
9.4 Binding Terms. The terms of this Plan shall be binding upon and inure to
the benefit of the parties hereto, their respective heirs, executors,
administrators and successors.
9.5 Spendthrift Provision. The interest of any Participant or any beneficiary
receiving payments hereunder shall not be subject to anticipation, nor to
voluntary or involuntary alienation until distribution is actually made.
9.6 No Assignment Permitted. No Participant, Beneficiary or heir shall have any
right to commute, sell, transfer, assign or otherwise convey the right to
receive any payment under the terms of this Plan. Any such attempted
assignment shall be considered null and void.
-Page 30-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
9.7 Construction. All headings preceding the text of the several Articles
hereof are inserted solely for reference and shall not constitute a part of
this Plan, nor affect its meaning, construction or effect. Where the
context admits, words in the masculine gender shall include the feminine
and neuter genders, and the singular shall mean the plural.
9.8 No Employment Agreement. Nothing in this Plan or in any Deferral Agreement
entered into under this Plan shall confer on any Participant the right to
continued employment with any Employer and, except as expressly set forth
in a written agreement entered into with the express authorization of the
Board of Directors of Employer, both the Participant and the Employer shall
be free to terminate Participant's employment for any cause or without
cause.
9.9 2005 Amendments. None of the amendments made to this Plan in 2005 shall be
read to invalidate any election made on or prior to December 31, 2004 that
would have been permissible under the terms of the Plan as it existed on
December 31, 2004 and such elections shall be deemed to remain in effect
unless changed as expressly provided for hereunder.
[the balance of this page has been left intentionally blank - signature page to
follow]
-Page 31-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
Tiffany and Company
("Tiffany")
By: /s/ Patrick B. Dorsey
------------------------------------
Name: Patrick B. Dorsey
Title: Senior Vice President - Secretary
Attest: /s/ Karen L. Sharp
-----------------------------
Name: Karen L. Sharp
Title: Assistant Secretary
Tiffany & Co.
("Parent")
By: /s/ Patrick B. Dorsey
------------------------------------
Name: Patrick B. Dorsey
Title: Senior Vice President - Secretary
Attest: /s/ Karen L. Sharp
-----------------------------
Name: Karen L. Sharp
Title: Assistant Secretary
-Page 32-
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
SCHEDULE 4.5 TO TIFFANY AND COMPANY EXECUTIVE DEFERRAL PLAN
Effective January 1, 2003
1. Gartmore GVIT Money Market Fund - Money Market
2. Federated Quality Bond Fund - Bond
3. Fidelity Equity Income Fund - Large Cap Value
4. Fidelity VIP II Contra Fund - Large Cap Blend
5. Janus Aspen Capital Appreciation Fund - Large Cap Growth
6. Dreyfus Stock Index Fund - S&P Index
7. Gartmore Small Cap Value Fund - Small Cap Value
8. Neuberger Berman Mid Cap Growth Fund - Mid Cap Growth
9. Janus Aspen International Growth Fund - International Developed Market
10. Gartmore GVIT Small Cap Growth Fund - Small Cap Growth
11. Goldman Sachs VIT Mid Cap Value Fund - Mid Cap Value
12. Oppenheimer Global Securities Fund - Global Equity
AS ADOPTED BY THE BOARD OF DIRECTORS NOVEMBER 23, 2005
-Page 33-