-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MFo+baQeecbPLI0Cqg1vWGHr6YgVdAxMdHxP2irsEMaPRf6BluvYpBlBzGAs6JtM QqV8/dBg0norrrCNvd/M8A== 0000950123-04-014530.txt : 20041207 0000950123-04-014530.hdr.sgml : 20041207 20041207172435 ACCESSION NUMBER: 0000950123-04-014530 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20041207 DATE AS OF CHANGE: 20041207 GROUP MEMBERS: TIFFANY & CO. INTERNATIONAL SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ABER DIAMOND CORP CENTRAL INDEX KEY: 0000841071 STANDARD INDUSTRIAL CLASSIFICATION: METAL MINING [1000] IRS NUMBER: 000000000 FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56591 FILM NUMBER: 041189129 BUSINESS ADDRESS: STREET 1: 355 BURRARD ST STREET 2: STE 930 CITY: VANCOUVER BC CANADA STATE: A1 ZIP: V6C 2G8 BUSINESS PHONE: 4163622237 MAIL ADDRESS: STREET 1: PO BOX 4569 STREET 2: STATION A CITY: VANCOUVER BC CANADA STATE: A1 ZIP: V6C 2G8 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TIFFANY & CO CENTRAL INDEX KEY: 0000098246 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-JEWELRY STORES [5944] IRS NUMBER: 133228013 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 727 FIFTH AVE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2122305317 MAIL ADDRESS: STREET 1: 727 FIFTH AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 SC 13D/A 1 y69439sc13dza.txt AMENDMENT NO. 1 TO SCHEDULE 13D OMB APPROVAL UNITED STATES OMB Number: 3235-0145 SECURITIES AND EXCHANGE COMMISSION Expires: December 31, 2005 WASHINGTON, D.C. 20549 Estimated average burden hours per response . . . . 11 SCHEDULE 13D/A UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 1)* Aber Diamond Corporation - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock - -------------------------------------------------------------------------------- (Title of Class of Securities) 002893105 - -------------------------------------------------------------------------------- (CUSIP Number) Patrick B. Dorsey, Esq. Senior Vice President, General Counsel and Secretary Tiffany & Co. 727 Fifth Avenue New York, New York 10022 (212) 755-8000 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 7, 2004 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. /__ / NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). (Continued on following pages) SCHEDULE 13D/A CUSIP NO. 002893105 Page 2 of 9 Pages - -------------------------------------------------------------------------------- (1) NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Tiffany & Co. International - -------------------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /__ / (b) / X / - -------------------------------------------------------------------------------- (3) SEC USE ONLY - -------------------------------------------------------------------------------- (4) SOURCE OF FUNDS (See Instructions) WC - -------------------------------------------------------------------------------- (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) Not applicable. /__ / - -------------------------------------------------------------------------------- (6) CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- (7) SOLE VOTING POWER None NUMBER OF ---------------------------------------------- SHARES (8) SHARED VOTING POWER BENEFICIALLY OWNED BY 8,000,000 EACH ---------------------------------------------- REPORTING (9) SOLE DISPOSITIVE POWER PERSON WITH None ---------------------------------------------- (10) SHARED DISPOSITIVE POWER 8,000,000 - -------------------------------------------------------------------------------- (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,000,000 - -------------------------------------------------------------------------------- (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) Not applicable. /__ / - -------------------------------------------------------------------------------- (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14.3%* * Based on 55,933,232 common shares reported by the Issuer to be outstanding as of January 31, 2004, as reported by the Issuer in its Form 40-F filed with the SEC on June 18, 2004. - -------------------------------------------------------------------------------- (14) TYPE OF REPORTING PERSON CO - -------------------------------------------------------------------------------- SCHEDULE 13D/A CUSIP NO. 002893105 Page 3 of 9 Pages - -------------------------------------------------------------------------------- (1) NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Tiffany & Co. - -------------------------------------------------------------------------------- (2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) /__ / (b) / X / - -------------------------------------------------------------------------------- (3) SEC USE ONLY - -------------------------------------------------------------------------------- (4) SOURCE OF FUNDS (See Instructions) WC - -------------------------------------------------------------------------------- (5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) Not applicable. /__ / - -------------------------------------------------------------------------------- (6) CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- (7) SOLE VOTING POWER None NUMBER OF ---------------------------------------------- SHARES (8) SHARED VOTING POWER BENEFICIALLY OWNED BY 8,000,000 EACH ---------------------------------------------- REPORTING (9) SOLE DISPOSITIVE POWER PERSON WITH None ---------------------------------------------- (10) SHARED DISPOSITIVE POWER 8,000,000 - -------------------------------------------------------------------------------- (11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,000,000 - -------------------------------------------------------------------------------- (12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) Not applicable. /__ / - -------------------------------------------------------------------------------- (13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14.3%* * Based on 55,933,232 common shares reported by the Issuer to be outstanding as of January 31, 2004, as reported by the Issuer in its Form 40-F filed with the SEC on June 18, 2004. - -------------------------------------------------------------------------------- (14) TYPE OF REPORTING PERSON CO, HC - -------------------------------------------------------------------------------- SCHEDULE 13D/A CUSIP NO. 002893105 Page 4 of 9 Pages This Schedule 13D/A ("Amendment No. 1") is being filed by Tiffany & Co. International, a Delaware corporation ("International"), and Tiffany & Co., a Delaware corporation ("Parent" and together with International, the "Reporting Persons"). International is a direct wholly-owned subsidiary of Parent. This Amendment No. 1 is being filed to amend and supplement the statement on Schedule 13D originally filed with the Securities and Exchange Commission (the "SEC") on July 27, 1999 (the "Original 13D"), with respect to the Common Stock, no par value (the "Common Stock"), of Aber Diamond Corporation (previously known as Aber Resources Ltd.) (the "Issuer"). Capitalized terms used but not defined in this Amendment No. 1 have the meanings assigned thereto in the Original 13D. Except as disclosed in this Amendment No. 1, the information contained in the Original 13D, has not changed as of the date hereof. Items 4 and 6 are hereby amended and restated as set forth below and Items 2, 5 and 7 are amended to the extent set forth below: ITEM 2. IDENTITY AND BACKGROUND. The third paragraph of Item 2(a) - (c); (f) is hereby deleted in its entirety and replaced with the following new paragraph: To the best of the Reporting Persons' knowledge as of the date hereof, the name, business address, present principal occupation or employment and citizenship of each executive officer and director of each Reporting Person, and the name, principal business and address of any corporation or other organization in which such employment is conducted is set forth on Schedules I and II hereto. The information contained in Schedules I and II is incorporated herein by reference. Item 2 (d) - (e) is hereby amended and restated as follows: During the last five years, none of the Reporting Persons, their respective executive officers or their respective directors have been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or were a party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 4. PURPOSE OF TRANSACTION. On December 6, 2004, International entered into an Extinguishment and Termination Agreement (the "Termination Agreement") with the Issuer to cancel and extinguish certain provisions of the Subscription Agreement, entered into on July 16, 1999 and previously described in the Original 13D. Pursuant to the Termination Agreement, the Issuer agreed to cancel and extinguish certain of its rights with respect to the sale by International of the 8,000,000 shares of Common Stock purchased by International pursuant to the Subscription Agreement (the "Shares"), to certain dealers (collectively, "Dealers") subject to the satisfaction of certain conditions, described in Item 6 below. Pursuant to the terms of the Termination Agreement, International relinquished its right to have a representative of the Reporting Persons nominated to the Issuer's Board of Directors at each annual meeting of shareholders. Pursuant to the terms of the Termination Agreement, James Fernandez resigned from the Board of Directors of the Issuer, and the Issuer is no longer required by the Subscription Agreement to nominate a representative of the Reporting Persons to the Issuer's Board of Directors. On December 7, 2004, International entered into a Purchase Agreement (the "Purchase Agreement") with Merrill Lynch Canada, Inc., CIBC World Markets Inc., Scotia Capital Inc. and UBS Securities Canada Inc. (collectively, "Merrill Lynch"), pursuant to which Merrill Lynch shall acquire, subject to certain conditions described in Item 6 below, all of the Shares at a purchase price equal to CAN$42.00 per share (the "Stock Sale"). Upon closing of the Stock Sale on December 10, 2004, the Reporting Persons will not own beneficially or of record, any shares of Common Stock of the Issuer. SCHEDULE 13D/A CUSIP NO. 002893105 Page 5 of 9 Pages Under the terms of the Purchase Agreement, Merrill Lynch will offer the Shares for resale (i) in the United States to "accredited investors" (as defined in Section 2(a)(15) of the Securities Act of 1933, as amended (the "Securities Act")) and to "qualified institutional buyers" as defined in Rule 144A(a)(1) under the Securities Act, (ii) in all transactions outside the United States in reliance on Regulation S under the Securities Act ("Regulation S") and (iii) in Canada without filing a prospectus and in compliance with Canadian securities laws including the rules and regulations of the Toronto Stock Exchange. The obligations of Merrill Lynch under the Purchase Agreement are subject to certain conditions, described in Item 6 below. All references to the Termination Agreement and Purchase Agreement set forth in this Item 4 are qualified in their entirety by reference to the copy of the Termination Agreement and Purchase Agreement included as Exhibits 99.1 and 99.2, respectively, to this Amendment No. 1, each of which is incorporated herein by reference. Except as indicated above, the Reporting Persons have no plans or proposals which relate to or would result in any of the events, actions or conditions specified in paragraphs (a) through (j) of Item 4 of Schedule 13D. This Amendment No. 1 is not an offer to sell any securities or a solicitation to buy any securities. These securities have not been, and will not be, registered under the Securities Act and may not be offered or sold in the United States absent registration thereunder or under an applicable exemption from such registration requirements. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5 is amended and supplemented by amending paragraph (c) as follows and adding the following new paragraph (e): (c) On December 7, 2004, International entered into the Purchase Agreement with Merrill Lynch, a copy of which is included as Exhibit 99.2 hereto and which is incorporated by reference herein, pursuant to which Merrill Lynch shall acquire, subject to certain conditions described in Item 6 below, all of the Shares at a purchase price equal to CAN$42.00 per share. Upon closing of the Stock Sale, the Reporting Persons will not own beneficially or of record, any shares of Common Stock of the Issuer. (e) Upon closing of the Stock Sale, the Reporting Persons will not own beneficially or of record, any shares of Common Stock of the Issuer. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER The information set forth or incorporated by reference in Item 4 is hereby incorporated by reference. Pursuant to the terms of the Termination Agreement, a copy of which is included as Exhibit 99.1 hereto and which is incorporated herein by reference, the Issuer agreed to cancel and extinguish certain of its rights with respect to the sale of the Shares upon payment by International to the Issuer of the sum of US$ 7 million (the "Extinguishment Fee"); provided, that: (i) such cancellation and extinguishment of certain of the Issuer's rights under the Subscription Agreement only shall be applicable to a sale of the Shares to or through the Dealers; (ii) the Dealers shall have entered into an agreement with the Issuer providing that (A) the Dealers promptly shall disclose in reasonable detail to the Issuer the identities of the persons who have agreed to purchase the Shares from the Dealers (the "Ultimate Purchasers") and (B) the Dealers shall not sell to any Ultimate Purchaser or group of Ultimate Purchasers under common control, more than 2,000,000 of the Shares without the Issuer's prior consent to be acknowledged in writing; and SCHEDULE 13D/A CUSIP NO. 002893105 Page 6 of 9 Pages (iii) the Board of Directors of the Issuer shall have received the written resignation of James Fernandez as a director of the Issuer. Pursuant to the terms of the Purchase Agreement, a copy of which is included as Exhibit 99.2 hereto and which is incorporated herein by reference, Merrill Lynch shall acquire, subject to certain conditions described below, all of the Shares at a purchase price equal to CAN$42.00 per share. Upon closing of the Stock Sale, the Reporting Persons will not own beneficially or of record, any shares of Common Stock of the Issuer. Merrill Lynch will offer the Shares for resale upon the terms and conditions set forth in the Purchase Agreement (i) in the United States to "accredited investors" (as defined in Section 2(a)(15) of the Securities Act) and to "qualified institutional buyers" as defined in Rule 144A(a)(1) under the Securities Act, (ii) in all transactions outside the United States, including in Canada, in reliance on Regulation S under the Securities Act and (iii) in Canada without filing a prospectus and in compliance with Canadian securities laws including the rules and regulations of the Toronto Stock Exchange. The obligations of Merrill Lynch under the Purchase Agreement are subject to termination in the absolute discretion of Merrill Lynch if at any time prior to the time of purchase there shall have occurred: (i) a suspension or material limitation in trading in securities generally on the Toronto Stock Exchange; (ii) a suspension or material limitation in trading in the shares of common stock of the Issuer on the Toronto Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Canadian or Ontario authorities or a material disruption in commercial banking or securities settlement or clearance services in Canada; or (iv) any other calamity or crisis or any change in financial, political or economic conditions in Canada or elsewhere, if the effect of any such event specified in clause (iv) in the judgment of Merrill Lynch makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares on the terms and in the manner set forth in the Purchase Agreement. All references to the Termination Agreement and Purchase Agreement set forth in this Item 6 are qualified in their entirety by reference to the copy of the Termination Agreement and Purchase Agreement included as Exhibits 99.1 and 99.2, respectively, to this Amendment No. 1. This Amendment No. 1 is not an offer to sell any securities or a solicitation to buy any securities. These securities have not been, and will not be, registered under the Securities Act and may not be offered or sold in the United States absent registration thereunder or under an applicable exemption from such registration requirements. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Item 7 is amended and supplemented by adding the following new exhibits: 99.1 Termination Agreement, dated as of December 6, 2004, by and between Tiffany & Co. International and Aber Diamond Corporation. 99.2 Purchase Agreement, dated as of December 7, 2004, by and between Tiffany & Co. International, Tiffany & Co., Merrill Lynch & Co., CIBC World Markets Inc., Scotia Capital Inc. and UBS Securities Canada Inc. SCHEDULE 13D/A CUSIP NO. 002893105 Page 7 of 9 Pages SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. TIFFANY & CO. INTERNATIONAL By: /s/ Patrick B. Dorsey __________________________ December 7, 2004 Patrick B. Dorsey Vice President and Secretary TIFFANY & CO. December 7, 2004 By: /s/ Patrick B. Dorsey _________________________ Patrick B. Dorsey Senior Vice President, General Counsel and Secretary SCHEDULE 13D/A CUSIP NO. 002893105 Page 8 of 9 Pages SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF TIFFANY & CO. INTERNATIONAL The following table sets forth the name, business address and present principal occupation or employment of each director and executive officer of Tiffany & Co. International. Except as indicated below, each such person is a U.S. citizen and the business address of each such person is 727 Fifth Avenue, New York, New York 10022. BOARD OF DIRECTORS OF TIFFANY & CO. INTERNATIONAL
Name and Title Present Principal Occupation Michael J. Kowalski, Chairman of the Board and Chief Executive Officer, Director Tiffany & Co. James E. Quinn, President, Tiffany & Co. Director James N. Fernandez, Executive Vice President and Chief Financial Officer, Director Tiffany & Co. Patrick B. Dorsey, Senior Vice President, General Counsel and Secretary, Director Tiffany & Co.
EXECUTIVE OFFICERS OF TIFFANY & CO. INTERNATIONAL
Name and Title Present Principal Occupation Michael J. Kowalski, Chairman of the Board and Chief Executive Officer, President Tiffany & Co. James N. Fernandez, Executive Vice President and Chief Financial Officer, Vice President and Tiffany & Co. Chief Executive Officer Patrick B. Dorsey, Senior Vice President, General Counsel and Secretary, Vice President and Tiffany & Co. Secretary James E. Quinn, President, Tiffany & Co. Vice President Warren S. Feld, Vice President and Controller-Tiffany and Company; Controller Controller, Tiffany & Co. Michael W. Connolly, Treasurer, Tiffany & Co. Treasurer
SCHEDULE 13D/A CUSIP NO. 002893105 Page 9 of 9 Pages SCHEDULE II DIRECTORS AND EXECUTIVE OFFICERS OF TIFFANY & CO. The following table sets forth the name, business address and present principal occupation or employment of each director and executive officer of Tiffany & Co. Except as indicated below, each such person is a U.S. citizen and the business address of each such person is 727 Fifth Avenue, New York, New York 10022. BOARD OF DIRECTORS OF TIFFANY & CO.
Name and Title Present Principal Occupation Michael J. Kowalski Chairman of the Board and Chief Executive Officer, Tiffany & Co. James E. Quinn President, Tiffany & Co. Rose Marie Bravo Chief Executive of Burberry Limited. The address of Burberry Limited is 1350 Avenue of the Americas, 30th Floor, New York, New York 10019. William R. Chaney Former Chairman of the Board, Tiffany & Co. Samuel L. Hayes III Jacob H. Schiff Professor Emeritus - Harvard Business School. The address of Harvard Business School is Cumnock Hall 300, Harvard Business School Boston, Massachusetts 02163. Abby F. Kohnstamm Senior Vice President, Marketing of IBM Corporation. The address of IBM Corporation is 1133 Westchester Avenue, White Plains, New York 10604. Charles K. Marquis Senior Advisor to Investcorp International Inc. The address of Investcorp International Inc. is 280 Park Avenue, 37th Floor West, New York, New York 10017. J. Thomas Presby Mr. Presby is active as a director, mediator, arbitrator and business advisor. The business address for Mr. Presby is c/o Deloitte, 1633 Broadway, New York, New York 10019-6754. James E. Quinn President, Tiffany & Co. William A. Shutzer Partner, Senior Managing Director - EverCore Partners. The address of EverCore Partners is 55 East 52nd Street, 43rd Floor, New York, New York 10005.
EXECUTIVE OFFICERS OF TIFFANY & CO.
Name and Title Present Principal Occupation Michael J. Kowalski Chairman of the Board of Directors and Chief Executive Officer James E. Quinn President Beth O. Canavan Executive Vice President James N. Fernandez Executive Vice President and Chief Financial Officer Victoria Berger-Gross Senior Vice President -- Human Resources Patrick B. Dorsey Senior Vice President, General Counsel and Secretary Fernanda M. Kellogg Senior Vice President -- Public Relations Jon M. King Senior Vice President -- Merchandising Caroline D. Naggiar Senior Vice President -- Marketing John S. Petterson Senior Vice President -- Operations
EX-99.1 2 y69439exv99w1.txt TERMINATION AGREEMENT Exhibit 99.1 EXTINGUISHMENT AND TERMINATION AGREEMENT EXTINGUISHMENT AND TERMINATION AGREEMENT dated the 6th day of December, 2004 BETWEEN: TIFFANY & CO. INTERNATIONAL, a corporation incorporated under the laws of the State of Delaware (the "Purchaser") OF THE FIRST PART and ABER DIAMOND CORPORATION (formerly known as Aber Resources Ltd.), a corporation continued under the laws of Canada ("Aber" or the "Company") OF THE SECOND PART WHEREAS the Purchaser and the Company are parties to a private placement subscription agreement dated July 16, 1999 (the "Private Placement Subscription Agreement") pursuant to which the Company issued and sold to the Purchaser 8,000,000 common shares (the "Purchased Shares") in the capital of the Company; AND WHEREAS the Purchaser desires to sell the Purchased Shares and the Company is prepared, subject to the terms and conditions of this Agreement, to cancel and extinguish certain provisions of the Private Placement Subscription Agreement in respect of such sale. NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the parties hereto, the parties hereto covenant and agree as follows: 1. EXTINGUISHMENT Under Section 9.1(b) of the Private Placement Subscription Agreement, the Company has certain rights with respect to the sale by the Purchaser of the Purchased Shares (the "Rights"). The Company hereby agrees to cancel and extinguish the Rights with respect to the sale by the Purchaser of all (but not less than all) of the Purchased Shares through Merrill Lynch Canada Inc. and its affiliates in association with one or more of the following firms: CIBC World Markets Inc., Scotia Capital Inc. and UBS Securities Canada Inc. and their respective affiliates -2- (such dealers, and/or such other dealers as the Company may approve in writing, such approval not to be unreasonably withheld, being hereinafter collectively referred to as the "Agents") upon the payment by the Purchaser to the Company of the sum of US$7 million (the "Extinguishment Fee") provided that: (a) such cancellation and extinguishment of the Rights shall only be applicable to a sale of the Purchased Shares to or through the Agents; (b) the Agents shall have covenanted and agreed with the Company in an enforceable agreement that: (i) they shall promptly disclose in reasonable detail to the satisfaction of the Company the identities of the persons (the "Ultimate Purchasers") who have agreed to purchase from the Agents the Purchased Shares; (ii) the Agents shall not sell to any Ultimate Purchaser or group of Ultimate Purchasers under common control more than 2,000,000 of the Purchased Shares without the Company's prior written consent; and (c) the Board of Directors of the Company shall have received the written resignation (such resignation to be substantially in the form attached as Schedule "A") of James Fernandez as a director of the Company, such resignation to take effect immediately. 2. COVENANTS OF THE COMPANY The Company covenants and agrees that, contemporaneously with the execution and delivery of this Agreement, the Company shall provide written confirmation to the Agent(s) that, as of the time of execution of this Agreement, other than as disclosed in the press release of Aber to be issued upon execution of this Agreement, since the time of issuance of Aber's press release and management's discussion and analysis on December 6, 2004, there has not occurred any "material change" (as such term is defined in the Securities Act (Ontario)) in respect of the Company. 3. EFFECTIVE TIME OF EXTINGUISHMENT The cancellation and extinguishment of the Rights shall be effective immediately, subject to the provisions of paragraph 1(a) above. -3- 4. PAYMENT The Purchaser agrees to pay the Extinguishment Fee by wire transfer to the account of the Company as specified in Schedule "B", such wire transfer to be sent not later than 12:00 noon EST on Thursday, December 9, 2004. 5. TERMINATION OF COVENANTS The Purchaser and the Company covenant and agree that with effect as of the date hereof: (a) the covenants of the Company under clauses 8.1(c), (d), (e) and (f) of the Private Placement Subscription Agreement shall terminate and be of no further force or effect; (b) the Purchaser and the Company irrevocably acknowledge and agree that the respective covenants, representations, warranties and agreements of the Purchaser and the Company set forth in Articles 2 through 7, inclusive, of the Private Placement Subscription Agreement have, as applicable, been satisfied and fulfilled and that no basis exists for a claim by the Company or the Purchaser under Article 10 exists in respect of any breach thereof. 6. INDEMNIFICATION If, at any time, the Company is assessed an amount by any Canadian taxing authority for any value added or sales taxes in respect of any amount paid to the Company under this Agreement, the Purchaser shall immediately pay to the Company, in addition to any amounts payable to the Company under this Agreement, any amount so assessed, and required to be borne by the Company, including any value-added or sales tax and any penalties and interest which may be payable or assessed against the Company in connection therewith (the "Assessed Amount"). In addition, the Purchaser shall indemnify and hold harmless the Company's directors and officers for any and all liabilities they may have in respect of the Assessed Amount, which obligation the Company shall hold in trust for the benefit of its directors and officers. 7. INDEMNIFICATION CLAIMS (a) If any Canadian taxation authority asserts that the Company is responsible for an Assessed Amount (a "Claim"), the Company shall promptly notify the Purchaser of such Claim, and the provisions of Section 7(b) or 7(c), as the case may be, shall apply. -4- (b) With respect to any administrative or judicial proceeding regarding a Claim, to the extent the Company is able to separate the issue contested with respect to such Claim from other issues involving the Company without adversely affecting the Company (as determined by the Company in good faith), the Company shall permit the Purchaser (but the Purchaser shall be under no obligation) to contest and defend (and at its option to settle) any such Claim on behalf of the Company, provided that the Purchaser shall bear the full costs of such action. Notwithstanding the foregoing, the Purchaser shall, prior to commencing any such contest or defense as provided in this Section 7(b), provide a written acknowledgment of its liability to the Company in respect of the Claim and shall have paid the full amount of the Claim to the Company. The Company shall provide the Purchaser with such assistance as the Purchaser may reasonably request in connection with any such proceeding, which assistance shall include, without limitation, providing the Purchaser with such documents and other tangible items as the Purchaser may reasonably request in connection with such proceeding. (c) With respect to any administrative or judicial proceeding regarding a Claim, to the extent the Company is not able to separate the issue contested with respect to such Claim from other issues involving the Company without adversely affecting the Company (as determined by the Company in good faith), the Company shall at the expense of the Purchaser (including reasonable legal and accounting fees, and other expenses), and after giving reasonable consideration to the views of the Purchaser and its advisors, contest and defend any such Claim and, if requested by the Purchaser, shall appeal any adverse administrative or judicial decision to the highest authorities as allowed by law. Notwithstanding the foregoing, the Company shall not be required to commence any such contest or defense as provided in this Section 7(c) unless prior to such commencement the Purchaser has provided a written acknowledgment of its liability to the Company with respect to the Claim and has paid the full amount of the Claim to the Company. (d) Where the Purchaser has made a payment to the Company in respect of a Claim, as contemplated by either Section 7(b) or (c), and as a result of a successful contestation or defense of such Claim, a refund is received by the Company, the Purchaser shall be entitled to receive that portion of such refund (including the interest component of such refund) which is commensurate with the amount of the payment which the Purchaser has made to the Company, the amount of any -5- payment which the Company has made to the applicable taxation authority and the degree of success which has been achieved. 8. ASSIGNMENT Nether of the parties may assign any right, benefit or interest in this Agreement without the written consent of the other, and any purported assignment without such consent will be void. 9. ENTIRE AGREEMENT This Agreement together with the Private Placement Subscription Agreement constitutes the entire agreement between the parties and supersedes every previous agreement, communication, expectation, negotiation, representation, warranty or understanding whether oral or written, express or implied, statutory or otherwise, between the parties with respect to the subject matter of this Agreement. 10. TIME OF THE ESSENCE Time is expressly declared to be of the essence of this Agreement. Any extension of time hereunder shall not be deemed to be or to operate in law as a waiver on the part of that party granting the extension that time is no longer of the essence. 11. FURTHER ACTS Each party will execute and deliver such further agreements and documents and do such further acts and things as any other party hereto reasonably requests to evidence, carry out or give full force and effect to the intent of this Agreement. 12. ENUREMENT This Agreement will enure to the benefit of and be binding upon the respective legal representatives and successors and permitted assigns of the parties. 13. COUNTERPARTS AND FACSIMILE COPIES This Agreement may be executed in any number of counterparts and by facsimile copies with the same effect as if all parties to this Agreement had signed the same document and all counterparts and facsimile copies will be construed together and will constitute one and the same instrument. -6- IN WITNESS WHEREOF the parties hereto have hereunto duly executed this Agreement on the date first above written. TIFFANY & CO. INTERNATIONAL By: /s/ Patrick B. Dorsey ----------------------------------- Authorized Signing Officer ABER DIAMOND CORPORATION By: /s/ Robert Gannicot ----------------------------------- Authorized Signing Officer SCHEDULE "A" RESIGNATION The undersigned, James Fernandez (the "Director"), hereby tenders his resignation as a director of Aber Diamond Corporation (the "Corporation") to be effective immediately. DATED this 6th day of December, 2004. - -------------------------------------- --------------------------------------- Witness JAMES FERNANDEZ EX-99.2 3 y69439exv99w2.txt PURCHASE AGREEMENT Exhibit 99.2 8,000,000 Shares ABER DIAMOND CORPORATION Common Shares Without Par Value PURCHASE AGREEMENT between TIFFANY & CO. INTERNATIONAL and MERRILL LYNCH CANADA INC. and CIBC WORLD MARKETS INC. and SCOTIA CAPITAL INC. and UBS SECURITIES CANADA INC. December 7, 2004 PURCHASE AGREEMENT December 7, 2004 MERRILL LYNCH CANADA INC. BCE Place 181 Bay Street, Suite 400 Toronto, ON M5J 2V8 Canada CIBC WORLD MARKETS INC. BCE Place 161 Bay Street, 7th Floor Toronto, ON M5J 2S8 Canada SCOTIA CAPITAL INC. Scotia Plaza 40 King Street West P.O. Box 4085, Station "A" Toronto, ON M5W 2X6 Canada UBS SECURITIES CANADA INC. BCE Place 161 Bay Street, Suite 4100 P.O. Box 617 Toronto, ON M5J 2S1 Canada Dear Sirs and Mesdames: Tiffany & Co. International, a Delaware corporation, ("Tiffany"), proposes to sell to Merrill Lynch Canada Inc. ("Merrill Lynch"), CIBC World Markets Inc. ("CIBC"), Scotia Capital Inc. ("Scotia") and UBS Securities Canada Inc. ("UBS") (Merrill, CIBC, Scotia and UBS are all collectively referred to herein as the "Purchasers") 8,000,000 common shares, without par value (the "Shares"), of Aber Diamond Corporation, a British Columbia corporation ("Aber"). The Shares will be sold to the Purchasers for resale (i) in the United States without being registered under the Securities Act of 1933, as amended (the "Securities Act"), to "accredited investors" (as defined in Section 2(a)(15) of the Securities Act) and to "qualified institutional buyers" as defined in Rule 144A(a)(1) under the Securities Act, (ii) in all transactions outside the United States in reliance on Regulation S under the Securities Act ("Regulation S") and (iii) in Canada without filing a prospectus and in compliance with Canadian securities laws including the rules and regulations of the Toronto Stock Exchange. In consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), Tiffany and each of the Purchasers agree as follows: 1. Sale and Purchase. Upon the basis of the warranties and representations and subject to the other terms and conditions herein set forth, Tiffany agrees to sell to the Purchasers, and the Purchasers agree to purchase from Tiffany, the Shares at a purchase price of Cdn.$42.00 per share. In consideration of the Purchasers' agreement to purchase the Shares hereunder, Tiffany agrees to pay a fee or provide a discount in the amount of 1.5% of the purchase price per share to the Purchasers at the time of purchase (as defined below). The Purchasers' obligations to purchase the Shares in accordance with this Agreement shall be several and not joint in that each of the Purchasers shall severally be obligated to purchase only the percentage of the aggregate number of Shares set opposite its name in the attached Schedule 1. 2. Payment and Delivery. (a) Payment of the purchase price, net of the fees or discount contemplated in section 1 hereof, in Canadian dollars and/or U.S. dollars for the Shares shall be made by the Purchasers to Tiffany by wire transfer in same day funds, against delivery of the certificates representing the Shares to Merrill Lynch on behalf of the Purchasers, to Tiffany's account as specified in the attached Schedule 2. Such payment shall be made at 10:00 A.M., Toronto time, on December 10, 2004 (unless another time shall be agreed to by Tiffany and the Purchasers). The time at which such payment and delivery are actually made is herein sometimes called the "time of purchase". Certificates for the Shares, along with duly executed blank share transfer power in respect of the Shares, shall be delivered at the time of purchase to Davies Ward Phillips & Vineberg LLP, legal counsel of the Purchasers. (b) Each of Tiffany and the Purchasers shall be responsible for its own legal and out-of-pocket expenses incurred in connection with the transactions contemplated hereby. 3. Representations and Warranties of Tiffany. Tiffany represents and warrants to the Purchasers that: (a) Tiffany is a corporation existing under the laws of the State of Delaware and has all corporate power and authority necessary to enter into this Agreement and to sell, assign, transfer and deliver the Shares to the Purchasers hereunder. This Agreement has been duly authorized, executed and delivered by Tiffany and is a legal, valid and binding obligation of Tiffany, enforceable against Tiffany by the Purchasers in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency and other laws affecting the rights of creditors generally and except that equitable remedies may be granted only in the discretion of a court of competent jurisdiction. 2 (b) The sale of the Shares by Tiffany to the Purchasers hereunder and the compliance by Tiffany with all of the provisions of this Agreement: (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Tiffany is a party; or (ii) result in any violation of the provisions of (a) the charter or by-laws of Tiffany or (b) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over Tiffany except, in the case of clauses (i) and (ii)(b), for such conflicts, breaches, violations or defaults as would not impair in any material respect the ability of Tiffany to sell the Shares to the Purchasers hereunder or affect the market price or value of such Shares. (c) Tiffany is the registered and beneficial owner of the Shares with good and marketable title thereto free and clear of any lien, claim or encumbrance. Prior to the time of purchase, Tiffany will be the registered and beneficial owner of the Shares with good and marketable title thereto free and clear of any lien, claim or encumbrance. Upon completion of the transactions contemplated hereunder, all of the Shares will be owned by the Purchasers as beneficial owners of record, with good and marketable title thereto free and clear of any lien, claim or encumbrance (other than any lien, claim or encumbrance granted by the Purchasers). (d) No person other than the Purchasers have any written or oral agreement or option or any right or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement for the purchase or acquisition of any of the Shares. (e) Tiffany has not taken and will not take, directly or indirectly, any action prohibited by Regulation M under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), in connection with the offer and sale of the Shares. (f) Tiffany has not: (i) sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as defined in the Securities Act) which is or would be integrated with the sale of the Shares in a manner that would require the registration under the Securities Act of the Shares; or (ii) offered, solicited offers to buy or sold the Shares by any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act). (g) Tiffany has not engaged and will not engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Shares. (h) Tiffany is not aware of any material adverse change in the business, financial condition or results of operation of Aber since October 31, 2004. (i) Tiffany is not aware of any untrue statement of a material fact in the information released publicly by Aber or any omission to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. To the knowledge, information and belief of Tiffany, all material information relating to the business, operations, capital or affairs of Aber has been generally disclosed. 3 (j) Tiffany has obtained all consents and approvals from, and made all filings with, governmental or regulatory authorities as may be necessary for Tiffany to execute and deliver this Agreement and consummate the transactions contemplated hereby. (k) The sale of the Shares is not a "control block distribution" pursuant to National Instrument 62-101 under Canadian securities laws. 4. Representations, Warranties and Covenants of the Purchasers . The Purchasers propose to offer the Shares for sale upon the terms and conditions set forth in this Agreement. In connection with the purchase and sale of the Shares, each of the Purchasers hereby represents and warrants to and agrees with Tiffany that: (a) It will offer and sell the Shares only: (i) in Canada without filing a prospectus and in compliance with Canadian securities laws including the rules and regulations of the Toronto Stock Exchange; (ii) in the United States, to "accredited investors" and to "qualified institutional buyers" and (iii) in all transactions outside the United States, including in Canada, in reliance on Regulation S. (b) It has not and will not, directly or indirectly, solicit offers in the United States for, or offer or sell, the Shares by any form of general solicitation, general advertising (as such terms are used in Regulation D). (c) It will not take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Shares. (d) With respect to offers and sales outside the United States and Canada: (i) It understands that no action has been or will be taken in any jurisdiction by Tiffany that would permit a public offering of the Shares, or possession or distribution of any offering or publicity material relating to the Shares, in any country or jurisdiction where action for that purpose is required. (ii) It will comply with all applicable laws and regulations in each jurisdiction in which it acquires, offers, sells or delivers Shares or has in its possession or distributes any such offering or publicity material, in all cases at its own expense. (iii) None of the Purchasers, their affiliates or any person acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with respect to the Shares. (iv) Each of the Purchasers: (A) has not offered or sold and, prior to the date six months after the time of purchase, will not offer or sell any Shares to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public 4 in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (B) has complied and will comply with all applicable provisions of the Financial Services Act 1986 with respect to anything done by it in relation to the Shares in, from or otherwise involving the United Kingdom; and (C) has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Bonds to a person who is of a kind described in Article 11(3) of the Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom such document may otherwise lawfully be issued or passed on. 5. Representations and Warranties at Time of Purchase. All representations and warranties of each party contained in this Agreement shall be deemed to be repeated at the time of purchase and shall survive consummation of the transactions contemplated hereby. 6. Certain Covenants of Tiffany. Tiffany hereby agrees that: (a) Tiffany will not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that could be integrated with the sale of the Shares in a manner that would require the registration under the Securities Act of the offer and sale of the Shares pursuant to this Agreement. (b) Tiffany will not solicit any offer to buy or offer or sell the Shares by means of any form of general solicitation or general advertising (as those terms are used in Regulation D). (c) With respect to those Shares sold in reliance on Regulation S: (i) Tiffany has not engaged and will not engage in any directed selling efforts (within the meaning of Regulation S). Tiffany has complied and will comply with the requirements of Regulation S. (d) Tiffany will not take any action prohibited by Regulation M under the Exchange Act in connection with the distribution of the Shares contemplated hereby. 7. Termination. The obligations of the Purchasers hereunder shall be subject to termination in the absolute discretion of the Purchasers if at any time prior to the time of purchase there shall have occurred: (i) a suspension or material limitation in trading in securities generally on the Toronto Stock Exchange; (ii) a suspension or material limitation in trading in the shares of common stock of Aber on the Toronto Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Canadian or Ontario authorities or a material disruption in commercial banking or securities settlement or clearance services in Canada; or (iv) any other calamity or crisis or any change in financial, political or economic conditions in Canada or elsewhere, if the effect of any such event specified in clause (iv) in the judgment of the Purchasers makes it impracticable or inadvisable to proceed with the offering or the delivery of the Shares on the terms and in the manner contemplated herein. 5 8. Announcements. Tiffany agrees that, unless required by applicable law or regulation, prior to the time of purchase, it will not make any public announcement regarding the transactions contemplated hereby without the prior written consent of the Purchasers, such consent not to be unreasonably withheld provided that the Purchasers will have the opportunity to comment on any such proposed public announcement. 9. Effectiveness. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto. 10. Notices. Except as otherwise herein provided, all statements, requests, notices and agreements shall be in writing or by facsimile and shall be sufficient in all respects if delivered or sent to: (a) Merrill Lynch Canada Inc. BCE Place 181 Bay Street, Suite 400 Toronto, Ontario M5J 2V8 Canada Fax no.: 416-369-8778 Attention: Greg Fournier (b) CIBC World Markets Inc. BCE Place 161 Bay Street, 7th Floor Toronto, ON M5J 2S8 Canada Fax: no.: 416-594-8848 Attention: David Scott (c) Scotia Capital Inc. Scotia Plaza 40 King Street West P.O. Box 4085, Station "A" Toronto, ON M5W 2X6 Fax no.: 416-863-7117 Attention: Paul Rollinson (d) UBS Securities Canada Inc. BCE Place 161 Bay Street, Suite 4100 P.O. Box 617 Toronto, ON M5J 2S1 Canada Fax no.: 416-364-9296 Attention: Steven Latimer 6 (e) Tiffany & Co. International 600 Madison Avenue New York, NY 10022 U.S.A. Fax no.: 212-230-5324 Attention: Patrick Dorsey 11. Governing Law and Construction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. The section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this agreement. 12. Enurement. This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. 13. Amendments and Waivers. No amendment of this Agreement shall be valid or binding unless set forth in writing and duly executed by all of the parties hereto. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, nor shall any waiver constitute a continuing waiver unless expressly provided. 14. Further Assurances. Each of Tiffany and the Purchasers shall execute and deliver, in a timely manner, all such documents, certificates, assurances and other instruments as may reasonably be required to carry out the provisions of this Agreement. 15. Counterparts. This Agreement may be signed by the parties in counterparts which together shall constitute one and the same agreement among the parties. Delivery of an executed counterpart by facsimile shall be effective as delivery of a manually executed counterpart thereof. 7 If the foregoing correctly sets forth the understanding between Tiffany and the Purchasers, please so indicate in the space provided below for the purpose, whereupon this letter and your acceptance shall constitute a binding agreement between Tiffany and the Purchasers. Very truly yours, TIFFANY & CO. INTERNATIONAL By: /s/ Patrick B. Dorsey --------------------- Name: Patrick B. Dorsey Title: Vice President and Secretary Accepted and agreed to as of the date first above written: MERRILL LYNCH CANADA INC. CIBC WORLD MARKETS INC. By: /s/ Greg Fournier By: /s/ David Scott ---------------------------------- ----------------------------------- Name: Greg Fournier Name: David Scott Title: Managing Director Title: Managing Director SCOTIA CAPITAL INC. UBS SECURITIES CANADA INC. By: /s/ J. Paul Rollinson By: /s/ Steven A. Latimer ---------------------------------- ----------------------------------- Name: J. Paul Rollinson Name: Steven A. Latimer Title: Managing Director Title: /s/ Executive Director -----END PRIVACY-ENHANCED MESSAGE-----