Delaware | 1-9494 | 13-3228013 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (I.R.S. Employer Identification No.) | ||
200 Fifth Avenue, New York, New York | 10010 | |||
(Address of principal executive offices) | (Zip Code) |
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). |
Emerging growth company | o | ||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. | o |
Item 8.01 | Other Events. |
Item 9.01 | Financial Statements and Exhibits. |
(d) | Exhibits |
10.25x | Terms of Performance-Based Restricted Stock Unit Grant (Non-Transferable) under Registrant’s 2014 Employee Incentive Plan, as amended January 17, 2019. |
10.37 | Corporate Governance Principles, amended and restated effective January 17, 2019. |
TIFFANY & CO. | ||
(Registrant) | ||
By: /s/ Leigh M. Harlan | ||
Leigh M. Harlan | ||
Senior Vice President, Secretary | ||
and General Counsel | ||
Date: January 24, 2019 |
1. | Director Qualification Standards; Size of the Board of Directors (the “Board”); Audit Committee Service; Director Nominations and Resignations. |
i. | the Board will review and, if acceptable, approve the Corporation’s operating plan for each fiscal year, as developed and recommended by management; |
ii. | the Board will review actual performance against the operating plan; |
iii. | the Board will review and, if acceptable, approve the Corporation’s multi-year strategic plan, as developed and recommended by management; |
iv. | the Board will review and discuss, at least annually, management’s enterprise risk assessment; |
v. | the Board will review and discuss material risks that arise in the Corporation’s operations, as identified by management pursuant to item 9.d below, as well as any risk mitigation considerations identified by management; |
vi. | the Board will review and, if appropriate, amend or modify the charters of all Board Committees; |
vii. | the Board, with the assistance of the Audit Committee, will annually review, and, if acceptable, approve, a delegation of authority policy that delineates the matters that shall be reserved for Board approval from those matters that may be delegated to management.; |
viii. | the Board will review, at least annually, the delegation of authority to officers and employees for day-to-day operating matters of the Corporation and its subsidiaries; and |
ix. | the Board will review and, if acceptable, approve the Corporation’s policies or programs with respect to the payment of dividends and the repurchase of the Corporation’s securities. |
1. | Introduction and Terms of Grant. Participant has been granted (the “Grant”) Stock Units that shall be settled by the issuance and delivery of shares of Common Stock (“Shares”). The Grant has been made under the Plan by the Committee. The name of “Participant,” the “Grant Date,” the number of Stock Units granted, the “Performance Period,” the “Earnings Threshold,” “Earnings Target,” and “Earnings Maximum,” and the “Operating Cash Flow Threshold,” “Operating Cash Flow Target” and “Operating Cash Flow Maximum” are stated in the attached “Notice of Grant.” The other terms and conditions of the Grant are stated in this document and in the Plan. As used herein, “Stock Units” refers to Stock Units included in this Grant, and not to other stock units that may have been or may be granted. If Participant has the title of Vice President or a more senior title, this Grant will be void unless Participant executes and delivers to Parent those certain Non-Competition and Confidentiality Covenants in the form approved by the Committee within 180 days after the Grant Date. |
2. | Performance Vesting. |
(ii) | Subject to reduction pursuant to subsection (iii) below, if the Earnings Threshold or the Operating Cash Flow Threshold has been attained over the Performance Period, the Performance Portion shall be 100% of the Stock Units. |
(c) | Performance Goals. |
(i) | “Earnings” means Parent’s consolidated earnings per share on a diluted basis, as reported in Parent’s Annual Report on Form 10-K, aggregated over the Performance Period and as adjusted by the Committee as provided for below and in the Plan. The Earnings Threshold, Earnings Target and Earnings Maximum are expressed in the Notice of Grant as functions of Earnings, as so defined. |
(ii) | “Operating Cash Flow” means Parent’s consolidated operating cash flow, as reported in Parent’s Annual Report on Form 10-K, aggregated over the Performance Period and as adjusted by the Committee as provided for below and in the Plan. The Operating Cash Flow Threshold, Operating Cash Flow Target and Operating Cash Flow Maximum are set out in the Notice of Grant as functions of Operating Cash Flow, as so defined. |
(iii) | Earnings and Operating Cash Flow are each a “Performance Goal.” In determining whether any Performance Goal has been met, the Committee shall appropriately adjust any evaluation of attainment of a Performance Goal to exclude any of the following events that occurs during a Performance Period: (i) asset write-downs, (ii) litigation or claim judgments or settlements, (iii) the effect of changes in tax law, accounting principles or other such laws or provisions affecting reported results, (iv) accruals for reorganization and restructuring programs, (v) unusual or infrequently occurring items as described in said Annual Report for the applicable year, (vi) acquisitions or divestitures, (vii) any other specific unusual or nonrecurring events, or objectively determinable category thereto, (viii) foreign exchange gains and losses, and (ix) a change in Parent’s fiscal year. |
(a) | Following the Maturity Date, the Settlement Value will be issued and delivered in Shares, and any fractional Dividend Equivalent Units credited on vested Stock Units will be settled by the delivery of cash. In each case, delivery will be made within thirty (30) days following the Maturity Date, but in no event later than December 31 of the calendar year in which the last day of the Performance Period occurs, to Participant or an Approved Broker for the account of Participant. |
(b) | “Settlement Value” means the number of Shares equal to the number of vested Stock Units, plus the number of whole Dividend Equivalent Units credited on such vested Stock Units pursuant to Section 4. The Settlement Value shall be subject to further adjustment as provided in Section 4.2(c) of the Plan, to adjust for, among other corporate developments, stock splits and stock dividends. References to Settlement Values in this document shall be deemed references to Settlement Values as so adjusted. |
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(d) | In all circumstances, a Stock Unit that fails to vest on or before the Maturity Date shall be null and void and shall not confer upon Participant any rights, including any right to any Share. |
(i) | If the Termination Date occurs within or following the last fiscal year of the Performance Period (but prior to the Maturity Date), Stock Units shall vest as provided in Section 2 (subject to all of the terms and conditions thereof, including without limitation the Committee’s discretion in Section 2(b)(iii)), as though Participant’s Termination Date had not occurred before the Maturity Date. |
(ii) | If the Termination Date occurs within the second fiscal year of the Performance Period, 34% of Stock Units shall vest on the Termination Date. |
(iii) | If the Termination Date occurs within the first fiscal year of the Performance Period, 17% of Stock Units shall vest on the Termination Date. |
(c) | Termination due to Retirement. If Participant’s Termination Date occurs by reason of Retirement prior to a Change in Control, and the Grant Date was at least six months prior to such Termination Date, then the Stock Units shall vest as provided in Section 2 (subject to all of the terms and conditions thereof, including without limitation the Committee’s discretion in Section 2(b)(iii)), as though Participant’s Termination Date had not occurred before the Maturity Date. |
(d) | Termination due to Eligible Termination. If Participant’s Termination Date occurs by reason of Eligible Termination, and the Grant Date was at least six months prior to such Termination Date, then the Stock Units shall vest at the time and in the manner provided in Section 2 (subject to all of the terms and conditions thereof, including without limitation the Committee’s discretion in Section 2(b)(iii)), as though Participant’s Termination Date had not occurred before the Maturity Date. |
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(e) | Termination due to Severance Event. If (i) Participant’s Termination Date occurs by reason of a Severance Event and does not satisfy the criteria specified in Section 5(d) above, (ii) where required by the applicable Severance Plan as a condition of receiving severance benefits, Participant provides a release of claims to Parent and its Affiliates and agrees to confidentiality, non-competition, non-solicitation and similar covenants, and (iii) the last day of the Performance Period will occur no later than 12 months following the Termination Date, then the Stock Units will vest on the Maturity Date, with the number of Stock Units to vest to be calculated by multiplying (y) the quotient obtained by dividing the number of days Participant was employed during the Performance Period by the aggregate number of days in the full Performance Period, by (z) the number of Stock Units that would have vested for such Performance Period as determined in accordance with Section 2 (subject to all of the terms and conditions thereof, including without limitation the Committee’s discretion in Section 2(b)(ii)) had the Termination Date not occurred before the Maturity Date. |
(f) | In the event that any portion of the Stock Units vest pursuant to this Section, delivery as described in Section 3 shall take place within 30 days after vesting. For the avoidance of doubt, no Stock Units shall vest if Participant’s Termination Date occurs before the start of the Performance Period. |
(a) | All Stock Units shall vest upon a Change in Control that is a Terminating Transaction unless the date such Change in Control occurs is before the start of the Performance Period, in which case none of the Stock Units shall vest. |
(b) | In the event of a Change in Control that is not a Terminating Transaction, Stock Units will convert to “Time-Based Restricted Stock Units” as follows: |
(i) | If the Change in Control occurs in the first or second fiscal year of the Performance Period, then 55% of Stock Units shall convert to Time-Based Restricted Stock Units. |
(ii) | If the Change in Control occurs within or following the last fiscal year of the Performance Period, the percentage of the Target award number of Stock Units to convert to Time-Based Restricted Stock Units will be based on Parent’s cumulative performance during the first and second fiscal year of the Performance Period, as compared to the Performance Goals expressed in the Notice of Grant; provided that such Performance Goals shall be pro-rated for the cumulative two-year period (66.67%), and applied in a manner consistent with the guidance provided by the Committee as referenced in Section 2 above. |
(c) | The vesting of the Time-Based Restricted Stock Units converted as described above will occur upon the earliest of the following events: (i) Participant’s Involuntary Termination, (ii) Participant’s Termination Date due to death or Disability, (iii) Participant’s Retirement or (iv) the Maturity Date. If Participant’s Termination Date prior occurs for any other reason prior to the time the Time-Based Restricted Stock Units vest, such Units will expire and be null and void. |
(d) | In the event of vesting pursuant to this Section 6, delivery as described in Section 3 shall take place within 30 days after vesting. |
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(e) | For the avoidance of doubt, no conversion or vesting will occur pursuant to Sections 6(b) or 6(c) if the date of the applicable Change in Control is before the start of the Performance Period. |
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(a) | All Shares shall be subject to the restrictions on sale, encumbrance and other disposition provided by federal, state or foreign law. If at any time Parent determines, in its discretion, that (i) the listing, registration, or qualification of the Stock Units or Shares is required by any securities exchange or any applicable federal, state or foreign law (including any tax code and related regulations) or (ii) the consent or approval of any governmental regulatory authority is necessary or desirable, in either case as a condition to the issuance of Shares to Participant (or his or her beneficiary or estate) hereunder, then such issuance will not occur unless and until such listing, registration, qualification, consent or approval has been completed, effected or obtained, free of any conditions not acceptable to Parent. For the avoidance of doubt, Parent shall be under no obligation to effect such listing, registration, qualification, consent or approval. Further, in the event Parent determines that the delivery of any Shares will violate applicable law, Parent may defer delivery until such date as such delivery will no longer cause such violation, as determined in Parent’s opinion. Parent further reserves the right to impose other requirements or conditions on the settlement of the Stock Units or the issuance or delivery of any Shares delivered in connection with the Stock Units to the extent Parent determines such restrictions or conditions are necessary for legal or administrative reasons, and to require Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing. |
(b) | Without limiting the generality of the foregoing, Parent shall not be obligated to sell or issue any Shares pursuant to this document unless, on the date of sale and issuance thereof, such Shares are either registered under the Securities Act, and all applicable state securities laws, or are exempt from registration thereunder. Regardless of whether the offering and sale of Shares under the Plan have been registered under the Securities Act, or have been registered or qualified under the securities laws of any state, Parent at its discretion may impose restrictions upon the sale, pledge or other transfer of such Shares (including the placement of appropriate legends on stock certificates or the imposition of stop-transfer instructions) if, in the judgment of Parent, such restrictions are necessary in order to achieve compliance with the Securities Act or the securities laws of any state or any other law. |
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(i) | Participant’s conviction or plea of guilty or nolo contendere to a felony or any other crime involving financial impropriety or moral turpitude or which would tend to subject Parent, or any Affiliate of Parent to public criticism or to materially interfere with Participant’s continued employment; |
(ii) | Participant's willful and material violation of the Code of Conduct; |
(iii) | Participant’s willful failure, or willful refusal, to substantially perform or attempt to substantially perform his or her duties or all such proper and achievable directives issued by Participant’s manager or the Parent Board (other than any such failure resulting from incapacity due to physical or mental illness, any such actual or anticipated failure resulting from a resignation by Participant for Good Reason, or any such refusal made in good faith because Participant believes such directives to be illegal, unethical or immoral), provided Participant receives written notice demanding substantial performance and fails to comply within ten (10) business days of such demand; |
(iv) | Participant’s gross negligence in the performance of Participant’s duties and responsibilities that is materially injurious to Parent or any Affiliate of Parent; |
(v) | Participant’s willful breach of any material obligation that Participant has to Parent or any Affiliate of Parent under any written agreement with Parent or such Affiliate; |
(vi) | Participant's fraud, dishonesty, or theft with regard to Parent or any Affiliate of Parent; and |
(vii) | Participant’s failure to reasonably cooperate in any investigation of alleged misconduct by Participant, or by any other employee of Parent or any Affiliate of Parent. |
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(i) | Any Person or group (as defined in Rule 13d-5 under the Exchange Act) of Persons (excluding (i) Parent or any of its Affiliates, (ii) a trustee or any fiduciary holding securities under an employee benefit plan of Parent or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, (iv) a corporation owned, directly or indirectly by stockholders of Parent in substantially the same proportions as their ownership of Parent, or (v) any surviving or resulting entity or ultimate parent entity resulting from a reorganization, merger, consolidation or other corporate transaction referred to in clause (iii) below that does not constitute a Change in Control under clause (iii) below) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of Parent representing thirty-five percent (35%) or more of the combined voting power of Parent’s then outstanding securities entitled to vote in the election of directors of Parent; |
(ii) | If the individuals who, as of March 16, 2016, constitute the Parent Board (such individuals, the “Incumbent Board”) cease for any reason to constitute a majority of the Parent Board, provided that any person becoming a director subsequent to such date whose election, or nomination for election by the Parent’s shareholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such person were a member of the Incumbent Board; |
(iii) | The consummation of a reorganization, merger, consolidation or other corporate transaction involving Parent, in each case with respect to which the stockholders of Parent immediately prior to the consummation of such transaction would not, immediately after the consummation of such transaction, own more than fifty percent (50%) of the combined voting power of the surviving or resulting Person or ultimate parent entity resulting from such transaction, as the case may be; or |
(iv) | Assets representing fifty percent (50%) or more of the consolidated assets of Parent and its subsidiaries are sold, liquidated or distributed in a transaction (or series of transactions within a twelve (12) month period), other than such a sale or disposition immediately after which such assets will be owned directly or indirectly by the stockholders of Parent in substantially the same proportions as their ownership of the common stock of Parent immediately prior to such sale or disposition. |
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a. | a material adverse change in Participant’s duties, authority, responsibilities or reporting responsibility (other than any such change resulting from a period of incapacity due to Participant’s physical or mental illness); |
b. | a material adverse change in other terms or conditions of Participant’s employment (including Participant’s salary or target bonus) that are in effect immediately prior to the date of a Change in Control other than (i) a change that has been made on an across-the-board basis for substantially all of Employer's employees or (ii) subject to sub-section (e) below, a change in equity-based compensation (including the reduction or elimination thereof) resulting from the Change in Control; |
c. | a failure of any successor to Employer or Parent (whether direct or indirect and whether by merger, acquisition, consolidation, asset sale or otherwise) to assume in writing any |
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d. | any other action or inaction that constitutes a material breach by Employer or Parent of any agreement between Participant and Employer. For the avoidance of doubt, any payout of a short-term incentive or annual bonus for a given fiscal year which is less than the target shall not constitute Good Reason, provided that such lower payout is based upon the failure to meet pre-determined performance goals or a good faith determination by Employer or the Committee that Parent’s financial performance or Participant’s personal performance did not warrant a greater payout; |
e. | Parent’s failure to comply with the terms of any equity award granted to or required by contract to be granted to Participant; or |
f. | the relocation of Employer’s office where Participant was based immediately prior to the date of a Change in Control to a location more than fifty (50) miles away, or should Employer require Participant to be based more than fifty (50) miles away from such office (except for required travel on Employer’s business to an extent substantially consistent with Participant’s customary business travel obligations in the ordinary course of business prior to the date of a Change in Control). |
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