Attached files
Exhibit 10.106
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 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
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As Adopted by the Board of Directors July 15, 2009
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, effective January 1, 2006, Tiffany and Company and its parent
corporation further amended such plan to change the Enrollment Period to the
months of January through June each year, and to update such plan to reflect
current operational practices.
WHEREAS, effective December 31, 2008, Tiffany and Company further amended such
plan to change the definition of Termination of Service to ensure compliance
with Section 409A of the Code.
WHEREAS, effective August 1, 2009, Tiffany and Company and its parent
corporation further amended such plan to permit redirection of past
contributions amongst Retirement Accounts.
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.
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As Adopted by the Board of Directors July 15, 2009
This Plan shall be known as the
TIFFANY AND COMPANY
EXECUTIVE DEFERRAL PLAN
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As Adopted by the Board of Directors July 15, 2009
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.
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As Adopted by the Board of Directors July 15, 2009
"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 or electronic 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 the last business day of every month, for each
Participant, his date of death, Retirement, or other termination of services
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.
"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,
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As Adopted by the Board of Directors July 15, 2009
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.
"Enrollment Period" means, with respect to any Plan Year, the months of January
through June in the year preceding such Plan Year. The Enrollment Period may be
extended through July in the year preceding such Plan Year, upon an Eligible
Employee's request and
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As Adopted by the Board of Directors July 15, 2009
at the Administrator's discretion. With respect to a
person who becomes an Eligible Employee during the course of a Plan Year, in
respect of such Plan Year the Enrollment Period means 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.
"Plan" means the Tiffany and Company Executive Deferral Plan as described in
this instrument, as amended from time to time.
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As Adopted by the Board of Directors July 15, 2009
"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 Termination of Service by a Participant after attaining
his Permitted Retirement Age, provided that if the Participant is an Independent
Director, Retirement shall mean any Termination of Service as a Director after
attaining his Permitted Retirement Age.
"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 $150,000. Status as a Specified Employee shall be determined as of the
December 31 most recently preceding Participant's Termination of Service date.
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As Adopted by the Board of Directors July 15, 2009
"Termination of Service" means:
(a) with respect to Participant who is not an Independent Director, a
termination of services provided by the Participant to the Employer, whether
voluntarily or involuntarily, as determined by the Committee in accordance with
Section 409A of the Code and Section 1.409A-1(h) of the Treasury Regulations. In
determining whether a Participant who is not an Independent Director has
experienced a Termination of Service, the following provisions shall apply:
(i) Termination of Service shall occur when the Participant has
experienced a termination of employment with the Employer. A
Participant shall be considered to have experienced a termination
of employment for this purpose when the facts and circumstances
indicate that the Participant and his or her Employer reasonably
anticipate that either (A) no further services will be performed
by the Participant for the Employer after the applicable date, or
(B) that the level of bona fide services the Participant will
perform for the Employer after such date (whether as an employee
or as an independent contractor) will permanently decrease to no
more than 20% of the average level of bona fide services
performed by the Participant (whether as an employee or an
independent contractor) over the immediately preceding 36-month
period (or the full period of services to the Employer if the
Participant has been providing services to the Employer less than
36 months).
(ii) If the Participant is on military leave, sick leave, or other
bona fide leave of absence, other than a Disability leave, the
employment relationship between the Participant and the Employer
shall be treated as continuing intact, provided that the period
of such leave does not exceed 6 months, or if longer, so long as
the Participant retains a right to reemployment with the Employer
under an applicable statute or by contract. If the period of a
military leave, sick leave, or other bona fide leave of absence
exceeds 6 months and the Participant does not retain a right to
reemployment under an applicable statute or by contract, the
employment relationship shall be considered to be terminated for
purposes of this Plan as of the first day
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As Adopted by the Board of Directors July 15, 2009
immediately following 6the end of such 6-month period. In
applying the provisions of this paragraph, a leave of absence
shall be considered a bona fide leave of absence only if there is
a reasonable expectation that the Participant will return to
perform services for the Employer.
(b) With respect to a Participant who is an Independent Director, a "Termination
of Service" shall occur when such Participant ceases to be a Director, provided
that Director and Employer do not anticipate resumption of services as a
Director or Employee.
(c) With respect to a Participant who serves simultaneously as a Director and an
employee of Employer, a Termination of Service shall occur as described in
paragraph (a) above for all contributions prior to such Termination of Service.
Should such Participant continue as a Director following a Termination of
Service pursuant to section (a) above, and continue executive deferral
contributions under the Plan as an Independent Director, a Termination of
Service shall occur pursuant to section (b) above for the purposes of such
executive deferral contributions.
"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.
"Treasury Regulations" means the Treasury Regulations promulgated pursuant
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As Adopted by the Board of Directors July 15, 2009
to the Code, as amended from time to time. 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.
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As Adopted by the Board of Directors July 15, 2009
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 or his appointee 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; or, for a person who becomes an Eligible Employee during the
course of a Plan Year, any portion of Base Compensation or Bonus
Compensation applicable to services performed prior to the
Eligible Employee's date of election in that Plan Year.
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
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As Adopted by the Board of Directors July 15, 2009
that date on which the Participant would have, but for his
deferral election, have been paid such Compensation.
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.
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As Adopted by the Board of Directors July 15, 2009
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.
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
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As Adopted by the Board of Directors July 15, 2009
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.
On and after August 1, 2009, Participants shall have a one-time
option to redirect, by written election, 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 Retirement account or to
any of the three installment Retirement subaccounts, provided (i)
that each Participant shall, at the conclusion of such redirection
process, have only one Retirement subaccount; (ii) that
Participant's Retirement shall occur no earlier than one year
after Participant's written election for redirection is received
by the Plan Administrator; and (iii) Participant elects that
distributions under the Retirement Subaccount resulting from the
redirection hereunder, whether in a lump sum account or any of the
three installment subaccounts, shall commence five years after
Participant's Retirement. Should Participant's Retirement occur
within one year following the date on which the Plan Administrator
receives the written election for redirection under this
paragraph, such written election shall be deemed null and void and
Participant's prior written election shall apply.
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As Adopted by the Board of Directors July 15, 2009
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.
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
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As Adopted by the Board of Directors July 15, 2009
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 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.
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As Adopted by the Board of Directors July 15, 2009
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 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 at
any time throughout the course of each Plan Year. Notwithstanding the
foregoing sentence, the Administrator retains the discretion to
restrict the quantity of investment changes made by a participant in a
Plan Year, should that Participant's investment changes indicate market
timing or other abuse.
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.
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As Adopted by the Board of Directors July 15, 2009
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 Participant shall redirect the valuation of his or her
Deferred Benefit Accounts effective with the date of such amendment.
19
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, provided that
Participant has no discretion or control in determining the
Plan Year in which such lump sum amount is paid.
C. Subject to Section 6.1.F below, with respect to funds
20
As Adopted by the Board of Directors July 15, 2009
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 4.3A.
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 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.
21
As Adopted by the Board of Directors July 15, 2009
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
within 90 days of (i) the date of his Retirement, (ii) in the
case of Participant who has made a written election on and
after August 1, 2009 for redirection, pursuant to the fifth
paragraph of 4.3A, the fifth anniversary of his Retirement,
or (iii) in the case of Disability, his 65th birthday;
provided that, in all cases, Participant has no discretion or
control in determining the Plan Year in which such lump sum
amount is paid. 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 within 90 days of (x) the date
of his Retirement, (y) in the case of Participant's written
election on and after August 1, 2009 for redirection,
pursuant to the fifth paragraph of 4.3A, the fifth
anniversary of Participant's Retirement, or (z) in the case
of Disability, his 65th birthday; provided that, in all
cases, Participant has no discretion or control in
determining the Plan Year in which such lump sum amount is
paid; and with each subsequent annual installment to be paid
on or before February 1 of each subsequent year, determined
as follows:
22
As Adopted by the Board of Directors July 15, 2009
Five Annual Installments
Benefit Year Percentage of Installment
Retirement Account
1 (Year of Retirement/5th anniversary of Retirement/65th birthday) 20%
2 25%
3 33%
4 50%
5 100%
Ten Annual Installments
Benefit Year Percentage of Installment Retirement Account
1 (Year of Retirement/5th anniversary 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
Benefit Year Percentage of Installment Retirement Account
1 (Year of Retirement /5th anniversary 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%
23
As Adopted by the Board of Directors July 15, 2009
Twenty Annual Installments
Benefit Year Percentage of Installment Retirement Account
1 (Year of Retirement/5th anniversary 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
Participant's Termination of Service, provided that
Participant has no discretion or control in determining the
Plan Year in which such lump sum amount is paid.
24
As Adopted by the Board of Directors July 15, 2009
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-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.
25
As Adopted by the Board of Directors July 15, 2009
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
26
As Adopted by the Board of Directors July 15, 2009
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.
27
As Adopted by the Board of Directors July 15, 2009
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.
28
As Adopted by the Board of Directors July 15, 2009
.
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:
29
As Adopted by the Board of Directors July 15, 2009
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 person for
such action unless attributable to fraud or willful misconduct on the
part of the director, officer or employee of the Employer.
30
As Adopted by the Board of Directors July 15, 2009
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.
31
As Adopted by the Board of Directors July 15, 2009
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
(j)(4)(ix) of the Treasury Regulations, to pay a lump-sum benefit in
accordance with such Treasury Regulation 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.
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
32
As Adopted by the Board of Directors July 15, 2009
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.
33
As Adopted by the Board of Directors July 15, 2009
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.
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.
34
As Adopted by the Board of Directors July 15, 2009
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 and Subsequent Amendments. None of the amendments made to this Plan in
2005 or after 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]
35
As Adopted by the Board of Directors July 15, 2009
Tiffany and Company
("Tiffany")
By: /s/ Patrick B. Dorsey
______________________
Name: Patrick B. Dorsey
Title: Senior Vice President - Secretary
Attest: /s/ Robyn M. Wapner
____________________
Name: Robyn M. Wapner
Title: Assistant Secretary
Tiffany & Co.
("Parent")
By: /s/ Michael J. Kowalski
_______________________
Name: Michael J. Kowalski
Title: Chief Executive Officer
Attest: /s/ Robyn M. Wapner
___________________________
Name: Robyn M. Wapner
Title: Assistant Secretary
36
As Adopted by the Board of Directors July 15, 2009
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
37
As Adopted by the Board of Directors July 15, 200
