<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 7, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
TIFFANY & CO.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 13-3228013
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER IDENTIFICATION NO.)
ORGANIZATION)
</TABLE>
727 FIFTH AVENUE, NEW YORK, NY 10022 (212) 755-8000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
COMPANY'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
PATRICK B. DORSEY, C/O TIFFANY & CO., 727 FIFTH AVENUE, NEW YORK, NY 10022
(212) 755-8000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
STEVEN R. FINLEY, ESQ. ROHAN S. WEERASINGHE, ESQ.
GIBSON, DUNN & CRUTCHER LLP SHEARMAN & STERLING
200 PARK AVENUE 599 LEXINGTON AVENUE
NEW YORK, NY 10166 NEW YORK, NY 10022
(212) 351-4000 (212) 848-4000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] __________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value,
together with attached
preferred stock purchase
rights...................... 4,270,000 shares $49.22 $210,169,400 $58,427.10
- -----------------------------------------------------------------------------------------------------------------------------------
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based upon the average of the high and low prices
of the Common Stock on December 30, 1998 as reported on the New York Stock
Exchange Composite Tape.
THE REGISTRANT HEREBY AMENDS THE REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SUCH SECTION 8(a)
MAY DETERMINE.
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<PAGE> 2
EXPLANATORY NOTE
This Registration Statement contains two forms of prospectus: one to be
used in connection with an offering in the United States and Canada (the "U.S.
Prospectus") and one to be used in connection with a concurrent offering outside
the United States and Canada (the "International Prospectus"). The U.S.
Prospectus and the International Prospectus are identical except for their
respective cover pages, sections entitled "Underwriting" and back cover pages.
The form of U.S. Prospectus is included herein and is followed by the alternate
pages to be used in the International Prospectus. Each of the alternate pages
for the International Prospectus included herein is labeled "Alternate Page for
International Prospectus."
i
<PAGE> 3
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED JANUARY 7, 1999
PROSPECTUS
3,880,000 SHARES
[TIFFANY & CO. LOGO]
COMMON STOCK
------------------------
Mitsukoshi, Ltd., a stockholder of Tiffany & Co., is selling
3,880,000 shares of Tiffany & Co.'s Common Stock. The U.S. underwriters will
offer 3,104,000 shares in the United States and Canada and the international
managers will offer 776,000 shares outside of the United States and Canada.
The Common Stock trades on the New York Stock Exchange under the
symbol "TIF." On January 6, 1999, the last sale price of the Common Stock as
reported on the New York Stock Exchange was $56 13/16 per share.
INVESTING IN THE COMMON STOCK INVOLVES RISKS WHICH ARE DESCRIBED IN
THE "RISK FACTORS" SECTION BEGINNING ON PAGE 7 OF THIS PROSPECTUS.
------------------------
<TABLE>
<CAPTION>
PER SHARE TOTAL
--------- -----
<S> <C> <C>
Public offering price...................................... $ $
Underwriting discount...................................... $ $
Proceeds, before expenses, to Mitsukoshi................... $ $
</TABLE>
The U.S. underwriters may also purchase up to an additional 312,000
shares at the public offering price, less the underwriting discount, within 30
days from the date of this prospectus to cover over-allotments. The
international managers may similarly purchase up to an aggregate of an
additional 78,000 shares.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
The shares of Common Stock will be ready for delivery in New York,
New York on or about , 1999.
------------------------
MERRILL LYNCH & CO. ING BARING FURMAN SELZ LLC
------------------------
The date of this prospectus is , 1999
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<S> <C>
Where You Can Find More Information About the Company....... 3
Incorporation of Information We File With the SEC........... 4
The Company................................................. 5
Recent Developments......................................... 5
Summary Financial Data...................................... 6
Risk Factors................................................ 7
Use of Proceeds............................................. 9
Capitalization.............................................. 10
Business.................................................... 11
Selling Stockholder......................................... 14
Underwriting................................................ 15
Legal Matters............................................... 17
Experts..................................................... 17
</TABLE>
FORWARD-LOOKING STATEMENTS
This prospectus contains (or incorporates by reference) certain
forward-looking statements. We have based these forward-looking statements on
our current expectations and projections about future events. These
forward-looking statements are subject to risks, uncertainties and assumptions
about the Company, including, among other things:
- Economic conditions and consumer attitudes,
- Successful completion of leases and construction for new stores,
- Continuation of existing product supply and design license arrangements,
- Continuity in the market for high-quality cut diamonds,
- Successful integration of new systems, particularly for inventory
management, into our operations, and improvement of warehousing and
distribution productivity,
- Stable exchange rates between the Japanese yen and the U.S. dollar and
- Timely completion of our year 2000 compliance program.
We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
In light of these risks, uncertainties and assumptions, the forward-looking
events contained or incorporated by reference in this prospectus might not
occur.
------------------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not, and the underwriters have not,
authorized any other person to provide you with different information. If anyone
provides you with different or inconsistent information, you should not rely on
it. We are not, and the underwriters are not, making an offer to sell these
securities in any jurisdiction where the offer or sale is not permitted. You
should assume that the information appearing in this prospectus, as well as
information we previously filed with the SEC and incorporated by reference, is
accurate as of the date on the front cover of this prospectus only. Our
business, financial condition, results of operations and prospects may have
changed since that date.
2
<PAGE> 5
WHERE YOU CAN FIND MORE INFORMATION ABOUT THE COMPANY
We file reports, proxy statements and other information with the Securities
and Exchange Commission. Our SEC filings are also available over the Internet at
the SEC's web site at http://www.sec.gov. You may also read and copy any
document we file at the SEC's public reference rooms in Washington, D.C., New
York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for
more information on the public reference rooms and their copy charges. You may
also inspect our SEC reports and other information at the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
We have filed a registration statement on Form S-3 with the SEC covering
the Common Stock. For further information on Tiffany & Co. and our Common Stock,
you should refer to our registration statement and its exhibits. This prospectus
summarizes material provisions of contracts and other documents that we refer
you to. Since the prospectus may not contain all the information that you may
find important, you should review the full text of those documents.
3
<PAGE> 6
INCORPORATION OF INFORMATION WE FILE WITH THE SEC
The SEC allows us to "incorporate by reference" the information we file
with them, which means:
- Incorporated documents are considered part of the prospectus,
- We can disclose important information to you by referring you to those
documents and
- Information that we file with the SEC will automatically update and
supersede this prospectus.
We incorporate by reference the documents listed below which were filed
with the SEC under the Securities Exchange Act of 1934 (the "Exchange Act"):
- Annual Report on Form 10-K for the fiscal year ended January 31, 1998,
- Quarterly Reports on Form 10-Q for the quarters ended April 30, 1998,
July 31, 1998 and October 31, 1998,
- Current Reports on Form 8-K filed April 17, 1998, November 19, 1998,
December 30, 1998 and January 7, 1999 and
- Description of the Company's Common Stock contained in the Registration
Statement filed with the SEC on Form S-1 (Registration No. 33-12818), as
most recently amended in the Prospectus for the Company's Common Stock
dated May 5, 1987, as supplemented by the Registration Statement dated
November 18, 1988, filed with the SEC on Form 8-A, as most recently
amended by Form 8-A/A dated September 24, 1998 and filed on September 25,
1998.
We also incorporate by reference each of the following documents that we
will file with the SEC after the date of this prospectus but before all the
Common Stock offered by this prospectus has been sold:
- Reports filed under Sections 13(a) and (c) of the Exchange Act,
- Definitive proxy or information statements filed under Section 14 of the
Exchange Act in connection with any subsequent stockholders' meeting and
- Any reports filed under Section 15(d) of the Exchange Act.
You may request a copy of any filings referred to above (excluding
exhibits), at no cost, by contacting us at the following address:
Tiffany & Co.
Attention: Investor Relations Department
727 Fifth Avenue
New York, NY 10022
(212) 605-4016
4
<PAGE> 7
THE COMPANY
Tiffany & Co. (the "Company") is the parent corporation of Tiffany and
Company ("Tiffany"), which was founded by Charles Lewis Tiffany in 1837. Tiffany
is the renowned jeweler and specialty retailer whose products are distinguished
by their design, quality and value. The Company's principal products are fine
jewelry, timepieces, sterling silver goods, china, crystal, stationery, writing
instruments, fragrances and personal accessories sold under the TIFFANY & CO.
trademark. From its roots at a single New York City store, the Company has
expanded to locations in the Americas, Asia and Europe. Its products are now
sold in more than 100 TIFFANY & CO. stores and boutiques, as well as through
other fine jewelers and select department stores, and through direct marketing
to catalog and business customers.
The Company pursues long-term growth through its strategies for expansion,
merchandising, marketing and customer service -- always focused on its goal of
being the world's most respected jewelry retailer.
RECENT DEVELOPMENTS
1998 HOLIDAY RESULTS
On January 7, 1999, the Company announced that its worldwide net sales in
the November 1 through December 31, 1998 holiday season rose 19.7% over the
comparable period in the prior year. These increases were as follows for the
Company's three channels of distribution:
<TABLE>
<S> <C>
U.S. Retail................................................. 22.2%
Comparable store sales.................................... 11.8
International Retail........................................ 20.2
Comparable store sales (in local currency)................ 11.4
Direct Marketing............................................ 6.9
</TABLE>
CHANGE OF CHIEF EXECUTIVE OFFICER
Effective February 1, 1999, Michael J. Kowalski, 46, will become the
Company's Chief Executive Officer, succeeding William R. Chaney. Mr. Chaney, 66,
has served as the Company's Chairman and Chief Executive Officer since August of
1984 and will continue to serve the Company as Chairman of the Board of
Directors. Mr. Kowalski now serves as President and Chief Operating Officer.
PRIVATE DEBT PLACEMENT
On December 30, 1998, the Company issued $60 million principal amount of
its 6.90% Series A Senior Notes due December 30, 2008 and $40 million principal
amount of its 7.05% Series B Senior Notes due December 30, 2010 (the "Senior
Notes"), in private transactions to institutional investors. The proceeds of the
Senior Notes will be used by the Company's subsidiaries as working capital and
to refinance a portion of outstanding short-term indebtedness under the
Company's revolving credit facility.
5
<PAGE> 8
TIFFANY & CO. AND SUBSIDIARIES SUMMARY FINANCIAL DATA
The summary financial data set forth below for the periods indicated should
be read in conjunction with "Management's Discussion and Analysis of Financial
Condition and Results of Operations," the consolidated financial statements, the
related notes and the other financial information incorporated in this
prospectus by reference. See "Incorporation of Information We File With the
SEC." The financial information for the fiscal years ended January 31, 1998,
1997 and 1996 has been derived from the audited consolidated financial
statements of the Company and its subsidiaries. The financial information for
the nine months ended October 31, 1998 and 1997 is unaudited but, in the opinion
of the Company, includes all adjustments, consisting only of normal recurring
accruals, considered necessary for the fair presentation of such information.
The results of operations for interim periods are not necessarily indicative of
the results to be expected for the full year.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
AND AT OCTOBER 31, YEARS ENDED AND AT JANUARY 31,
------------------------ ----------------------------------------
1998 1997 1998 1997 1996
---------- ---------- ------------ ---------- ----------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS, PERCENTAGES AND LOCATIONS)
<S> <C> <C> <C> <C> <C>
EARNINGS DATA
Net sales.................................... $726,441 $649,922 $1,017,616 $922,108 $803,292
Gross profit................................. 395,286 349,760 564,208 499,694 427,370
Earnings from operations..................... 67,901 57,374 133,422 109,413 80,013
Net earnings................................. 36,767 30,723 72,822 58,439 39,215
Net earnings per share:
Basic...................................... $ 1.05 $ 0.88 $ 2.08 $ 1.74 $ 1.24
Diluted.................................... 1.02 0.85 2.02 1.66 1.21
Weighted average number of common shares:
Basic...................................... 35,063 34,937 34,953 33,682 31,600
Diluted.................................... 36,045 36,158 36,104 35,690 34,020
Cash dividends per share..................... $ 0.25 $ 0.19 $ 0.26 $ 0.185 $ 0.14
BALANCE SHEET DATA
Cash and cash equivalents.................... $ 43,922 $ 24,483 $ 107,252 $117,161 $ 81,966
Inventories.................................. 519,427 415,371 386,431 335,389 311,252
Total assets................................. 943,505 773,964 827,067 739,418 654,257
Short-term borrowings........................ 153,969 65,196 90,054 76,338 78,967
Long-term debt............................... 94,315 93,080 90,930 92,675 101,500
Stockholders' equity......................... 464,284 417,006 443,724 378,264 264,378
OPERATING DATA
Locations open worldwide (at end of
period).................................... 130 119 123 104 98
U.S. Retail net sales........................ $363,519 $307,660 $ 491,459 $424,185 $364,158
Increase over prior year................... 18% 13% 16% 16% 18%
Comparable store increase.................. 8% 9% 11% 11% 12%
Percentage of total net sales.............. 50% 47% 48% 46% 45%
International Retail net sales............... $290,987 $279,887 $ 421,054 $397,341 $345,853
Increase over prior year................... 4% 8% 6% 15% 23%
Comparable store increase -- local
currency................................. 12% 13% 12% 14% 21%
Percentage of total net sales.............. 40% 43% 42% 43% 43%
Direct Marketing net sales................... $ 71,935 $ 62,375 $ 105,103 $100,582 $ 93,281
Increase (decrease) over prior year........ 15% (2)% 4% 8% 1%
Percentage of total net sales.............. 10% 10% 10% 11% 12%
</TABLE>
6
<PAGE> 9
RISK FACTORS
Investing in the Common Stock will provide you with an equity ownership
interest in the Company. As a stockholder, your investment will be subject to
the risks inherent in our business. The performance of your shares will reflect
the performance of our business relative to, among other things, competition,
general economic and market conditions and industry conditions. The value of
your investment may increase or decline and could result in a loss. You should
carefully consider the following risk factors as well as the other information
included and incorporated by reference in this prospectus before deciding to
invest in shares of the Common Stock.
SALES AND EARNINGS ATTRIBUTABLE TO JAPAN OPERATIONS
The Company derives a significant share of its operating earnings from its
operations in Japan. That share is larger than Japan's percentage of total
Company net sales. In the fiscal years ended January 31, 1996, 1997 and 1998,
and in the nine-month period ended October 31, 1998, total Japan sales
represented 28%, 27%, 27% and 27% of the Company's net sales, respectively.
Therefore, should sales made in Japan decline substantially, it is likely that
such decline would have a significant adverse effect on the Company's earnings.
Also, the ability of the Company to meet its sales and earnings estimates for
any single fiscal year is based upon the assumption that there will not be a
substantial adverse change in the exchange relationship between the Japanese yen
and the U.S. dollar throughout the course of such fiscal year.
The Company's commercial relationship with Mitsukoshi and Mitsukoshi's
ability to continue as a leading department store operator have been and will
continue to be substantial factors in the Company's continued success in Japan.
TIFFANY & CO. boutiques are located in 30 Mitsukoshi department stores and other
retail locations operated by Mitsukoshi in Japan. The Company also operates 13
boutiques in department stores other than Mitsukoshi, in locations within Japan
but outside of Tokyo, and plans to open more. See "Selling Stockholder --
Continued Relationship Between the Company and Mitsukoshi."
In recent years, the Japanese department store industry has, in general,
suffered declining sales. There is a risk that such financial difficulties will
force consolidations or store closings. Should one or more Japanese department
store operators, such as Mitsukoshi, elect or be required to close one or more
stores now housing a TIFFANY & CO. boutique, the Company's sales and earnings
would be reduced while alternate premises are being secured.
RISK OF REDUCED DISCRETIONARY PURCHASES OF LUXURY GOODS
As is the case with any retailer, wholesaler or direct marketer of consumer
goods, the Company's financial success is partially dependent on economic
conditions and consumer attitudes. TIFFANY & CO. products are, or are widely
perceived to be, "luxury" goods. Therefore, purchases of TIFFANY & CO. products
are often discretionary. Low or negative growth in the economy or in the
financial markets could reduce discretionary spending and, accordingly, reduce
the Company's sales.
JEWELRY DESIGNER LICENSES
Tiffany has been the sole licensee for jewelry designed by Elsa Peretti
since 1974 and by Paloma Picasso since 1980. In the fiscal year ended January
31, 1998, Ms. Peretti's designs represented approximately 14% of the Company's
total net sales and sales of Ms. Picasso's designs represented approximately 4%
of the Company's total net sales. Ms. Peretti and Ms. Picasso each retain
ownership of their respective trademarks and of the copyrights for their
respective designs. Written license agreements exist between Ms. Peretti and
Tiffany and between Ms. Picasso and Tiffany but those agreements may be
terminated by either party following six months notice to the other party. The
Company's operating results could be adversely affected if either license
agreement were terminated or substantially changed.
7
<PAGE> 10
DIAMOND SUPPLY
Diamond jewelry accounts for approximately 21% of the Company's net sales.
The supply and price of rough (uncut and unpolished) diamonds in the principal
world markets have been and continue to be significantly influenced by a single
entity, the Central Selling Organization (the "CSO") of De Beers Centenary AG, a
Swiss corporation. The CSO supplies approximately 70% of the world market for
rough, gem-quality diamonds. Through affiliates, the CSO continues to exert a
significant influence on the demand for polished diamonds by its advertising and
marketing efforts throughout the world.
The availability and price of diamonds to the CSO and Tiffany's suppliers
may be, to some extent, dependent on the political situation in
diamond-producing countries, the opening of new mines and the continuance of the
prevailing supply and marketing arrangements for rough diamonds. Sustained
interruption in the supply of rough diamonds, an over-abundance of supply or a
substantial change in the marketing arrangements described above could adversely
affect Tiffany and the retail jewelry industry as a whole. The CSO is testing a
program to authenticate and "brand" cut and polished diamonds with the CSO's
proprietary trademark. Such a program, coupled with a change in the marketing
and advertising policies of the CSO's affiliates, could affect consumer demand
for diamonds that do not bear the CSO's trademark. The Company may or may not
carry CSO-branded diamonds in the future.
Tiffany purchases cut diamonds principally from three key vendors. Were
trade relations between Tiffany and one or more of these vendors to be
disrupted, the Company's sales would be adversely affected in the short term
until alternative supply arrangements could be established.
COMPETITION
The Company encounters significant competition in all of its product lines
from other third-party providers, some of which specialize in just one area in
which the Company is active. Many of the Company's competitors have established
reputations for style and expertise similar to that of the Company and compete
on the basis of value. Other jewelers and retailers compete primarily through
advertised price promotion. The Company competes on the basis of quality and
value and does not engage in price promotional advertising.
The international marketplace for the Company's products is highly
competitive. Although the Company believes that TIFFANY & CO. is known
internationally, and although Tiffany did operate retail stores in London and
Paris prior to World War II, the Company did not have a retail presence in
Europe in the post-war era until 1986. Accordingly, consumer awareness of the
Company and its products is not as strong in Europe as in the United States or
in Japan, where Tiffany has distributed its products for many years. The Company
expects that its overseas stores will continue to experience intense competition
from established retailers in international cities where TIFFANY & CO. stores
are or may eventually be located.
The Company also faces increasing competition in the area of direct
marketing. A growing number of direct sellers compete for access to the same
mailing lists of known purchasers of luxury goods. In marketing service awards
and business gifts to corporations and other organizations, the Company faces
numerous competitors who sell a wide variety of products at a greater price
range than the Company, which has chosen to offer a more limited selection in
order to adhere to its established quality standards.
EXPANSION OF RETAIL OPERATIONS
The Company's ability to continue its scheduled worldwide retail expansion
program is dependent upon its ability to obtain desirable locations on suitable
lease terms and complete construction on a timely basis. In addition, the timing
and success of expansion outside the United States will depend upon import taxes
and duties and the extent of consumer demand for TIFFANY & CO. products in
overseas markets. These factors vary from market to market.
8
<PAGE> 11
INVENTORY MANAGEMENT AND DISTRIBUTION SYSTEMS
As the Company has grown, so have the demands placed on its distribution
and inventory management systems. The Company's ability to sustain growth in
sales and profitability is dependent upon the Company's ability to successfully
develop and integrate new systems, particularly for inventory management, into
the Company's operations and to further improve warehousing and distribution
productivity.
SEASONALITY
The Company's business is seasonal in nature, with the fourth fiscal
quarter typically representing a proportionally greater percentage of annual
sales, earnings from operations and cash flow. A downturn in economic conditions
or consumer spending on luxury goods in the fourth quarter of any year would
adversely affect the Company's sales and earnings.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the shares
offered by Mitsukoshi.
9
<PAGE> 12
CAPITALIZATION
The following table sets forth the capitalization of the Company as of
October 31, 1998. This table should be read in conjunction with "Management's
Discussion and Analysis of Financial Condition and Results of Operations," the
consolidated financial statements, the related notes and the other financial
information contained or incorporated by reference in this prospectus.
<TABLE>
<CAPTION>
AT OCTOBER 31, 1998
----------------------
(IN THOUSANDS, EXCEPT
PER SHARE AMOUNTS)
<S> <C>
Cash and cash equivalents................................... $ 43,922
========
Short-term borrowings....................................... $153,969
Long-term debt(1)........................................... 94,315
--------
Total debt.................................................. 248,284
--------
Stockholders' equity:
Common Stock, $.01 par value; authorized 60,000,000
shares, issued and outstanding 34,606,329 shares....... 346
Additional paid-in capital................................ 181,177
Retained earnings......................................... 294,289
Accumulated other comprehensive loss -- foreign currency
translation adjustments................................ (11,528)
--------
Total stockholders' equity.................................. 464,284
--------
Total capitalization........................................ $712,568
========
</TABLE>
- ---------------
(1) On December 30, 1998 the Company issued $100 million principal amount of
Senior Notes. See "Recent Developments -- Private Debt Placement."
10
<PAGE> 13
BUSINESS
GROWTH STRATEGIES
The Company continues to pursue the following growth strategies, focusing
on its goal of being the world's most respected jewelry retailer:
- Offering products that are superior to the competition in terms of
design, quality and value,
- Expanding distribution to provide customers with greater accessibility,
including the opening of new stores,
- Building worldwide customer awareness through an aggressive marketing
program and
- Providing customer service that assures a superior shopping experience.
PRODUCTS
The Company's principal products are fine jewelry, timepieces, sterling
silver goods, china, crystal, stationery, writing instruments, fragrances and
personal accessories sold under the TIFFANY & CO. trademark. For the fiscal year
ended January 31, 1998, approximately 31% of the products sold by the Company
were manufactured by the Company. The Company expects to increase that
percentage modestly over the next few years by development of additional
manufacturing capacity. For the fiscal year ended January 31, 1998, the Company
derived approximately 73% of its net sales from jewelry, 9% from tabletop
products, 6% from timepieces and 12% from other categories.
Although the Company is perceived by many to sell only luxury goods, the
average retail transaction within the Company's U.S. stores is $260, and the
Company has many products that are priced below that average. Such products are
popular purchases for occasion-related gift giving, such as for weddings,
engagements, birthdays and graduations. See "Risk Factors -- Risk of Reduced
Discretionary Purchases of Luxury Goods."
CHANNELS OF DISTRIBUTION
In reporting its sales results, the Company categorizes its business into
three channels of distribution. "U.S. Retail" consists of retail sales in
Company-operated stores in the United States, wholesale sales to independent
retailers in the United States and wholesale sales of fragrance products to
independent retailers in the Americas. "Direct Marketing" includes Corporate
Division (business-to-business) and catalog sales in the United States.
"International Retail" includes retail sales through Company-operated stores and
boutiques, business-to-business sales and wholesale sales to independent
retailers and distributors outside the United States.
U.S. Retail
Tiffany's Fifth Avenue flagship store in New York City accounts for
approximately 16% of total Company and 33% of U.S. Retail sales. The Company
also has 33 branch retail stores in the United States. The Company expects to
open three to five new branch stores in the United States each year. Newer
stores are smaller (6,000 to 8,000 gross square feet) than many of the older
stores (10,000 to 15,000 gross square feet) but have been designed with a higher
percentage of selling space.
11
<PAGE> 14
The following table lists the U.S. stores that the Company has opened in
addition to its flagship New York City store.
<TABLE>
<CAPTION>
STORE LOCATION YEAR OPENED STORE LOCATION YEAR OPENED
- -------------- ----------- -------------- -----------
<S> <C> <C> <C>
San Francisco, California 1963 King of Prussia, Pennsylvania 1995
Beverly Hills, California 1964 Short Hills, New Jersey 1995
Houston, Texas 1964 White Plains, New York 1995
Chicago, Illinois 1966 Bergen County, New Jersey 1996
Atlanta, Georgia 1969 Chevy Chase, Maryland 1996
Dallas, Texas 1982 Charlotte, North Carolina 1997
Boston, Massachusetts 1984 Chestnut Hill, Massachusetts 1997
Costa Mesa, California 1988 Cincinnati, Ohio 1997
Philadelphia, Pennsylvania 1990 Honolulu, Hawaii (Hilton) 1997
Vienna, Virginia 1990 Palo Alto, California 1997
Palm Beach, Florida 1991 Honolulu, Hawaii (Surfrider) 1998
Honolulu, Hawaii (Ala Moana) 1992 Manhasset, New York 1998
San Diego, California 1992 Denver, Colorado 1998
Troy, Michigan 1992 Scottsdale, Arizona 1998
Bal Harbour, Florida 1993 Las Vegas, Nevada 1998
Maui, Hawaii 1994 Seattle, Washington 1998
Oak Brook, Illinois 1994
</TABLE>
Tiffany also sells TIFFANY & CO. brand jewelry and tabletop products at
wholesale to approximately 270 U.S. independent retail locations.
Direct Marketing
Tiffany's Corporate Division consists of approximately 150 sales executives
who call on business clients throughout the United States. Corporate Division
customers purchase for business gift giving, employee service and achievement
recognition awards, customer incentives and other purposes, but not for purposes
of re-sale. The Company plans to achieve growth by better penetration of
existing geographic markets and by adding sales offices throughout the United
States.
Tiffany distributes catalogs of selected merchandise to its proprietary
list of mail and telephone customers and to mailing lists rented from third
parties. Four seasonal SELECTIONS(R) catalogs are published, supplemented by
COLLECTIONS and other catalogs. Tiffany has increased circulation in the fiscal
year ending January 31, 1999 by 12%, to approximately 24 million catalogs.
International Retail
Outside the United States, the Company does business in a variety of retail
formats. Some locations are operated by the Company's subsidiaries and some are
operated by third-party distributors. The Company expects to continue to open
stores in locations outside the United States.
Japan. For the fiscal year ended January 31, 1998, 27% of the Company's
total net sales was derived from locations in Japan. Those locations are:
- 1 stand-alone store operated by a Company subsidiary: the Ginza
flagship store,
12
<PAGE> 15
- 13 store-in-store boutiques operated by a Company subsidiary
(non-Mitsukoshi locations),
- 30 store-in-store boutiques operated by a Company subsidiary in
Mitsukoshi locations,
- 1 store-in-store boutique operated by Mitsukoshi: a FARAONE
boutique (FARAONE is a trademark of the Company's Italian
subsidiary) and
- 6 wholesale trade accounts operated by third parties.
Outside Japan and the United States. For the fiscal year ended January 31,
1998, 15% of the Company's total net sales was derived from locations outside of
Japan and the United States. Those locations are:
- 16 stand-alone stores operated by Company subsidiaries:
Australia (2), Canada, England, Germany (2), Hong Kong (3),
Italy (2), Korea, Singapore (2), Switzerland and Taiwan,
- 10 store-in-store boutiques operated by Company subsidiaries:
Australia, England, Hong Kong (2), Korea (2), Mexico, Taiwan
(3),
- 1 stand-alone store and 1 store-in-store boutique operated by
Mitsukoshi: Guam and Taiwan,
- 22 store-in-store boutiques operated by third parties:
Australia, Canada (5), Hong Kong, India, Indonesia (2), Korea
(5), Macao, New Zealand, Philippines (2), Saipan, Singapore and
Taiwan and
- 194 wholesale trade accounts operated by third parties: Europe
(142), Caribbean (16), Asia Pacific and Middle East (21),
Central/Latin America (15).
13
<PAGE> 16
SELLING STOCKHOLDER
The following table sets forth certain information with respect to the
beneficial ownership of Common Stock as of the date of this prospectus by
Mitsukoshi, and as adjusted to give effect to the sale by Mitsukoshi of shares
of Common Stock offered hereby:
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP BENEFICIAL OWNERSHIP
PRIOR TO OFFERINGS AFTER OFFERINGS
------------------------- SHARES BEING ----------------------------
NAME SHARES PERCENTAGE(1) OFFERED(2) SHARES(2) PERCENTAGE(1)(2)
- ---- --------- ------------- ------------ --------- ----------------
<S> <C> <C> <C> <C> <C>
Mitsukoshi, Ltd. ................ 4,270,000 12.3% 3,880,000 390,000 1.1%
c/o Mitsukoshi (U.S.A.), Inc.
12 East 49th Street
New York, New York 10017
</TABLE>
- ---------------
(1) Based upon 34,606,329 shares of Common Stock issued and outstanding as of
October 31, 1998.
(2) Assumes the Underwriters' over-allotment options are not exercised. If such
over-allotment options are exercised in full, Mitsukoshi will have sold all
its shares of Common Stock.
CONTINUED RELATIONSHIP BETWEEN THE COMPANY AND MITSUKOSHI
Mitsukoshi and the Company have an important commercial relationship that
they expect to maintain following Mitsukoshi's sale of the Common Stock offered
hereby.
From 1972 until July 1993, selected TIFFANY & CO. products, principally
jewelry and watches, were purchased from Tiffany by Mitsukoshi for resale in
Japan in TIFFANY & CO. boutiques located, for the most part, in Mitsukoshi's
department stores. Mitsukoshi has been a significant stockholder of the Company
since 1989. Mr. Yoshiaki Sakakura, formerly Chairman and Chief Executive Officer
of Mitsukoshi, has served as a director of the Company since 1989.
Since July 1993, the Company, through a wholly owned subsidiary, has
operated TIFFANY & CO. boutiques within Mitsukoshi's stores in Japan. The
Company currently operates 30 such boutiques. Under the operating arrangements
with Mitsukoshi, the Company retains ownership of its inventory and conducts the
merchandising and marketing operations. Mitsukoshi provides and maintains the
boutique facilities and staffs the boutiques with retail employees. The Company
pays Mitsukoshi fees aggregating 27% of net retail sales in the boutiques and an
incentive fee of 5% of the amount by which boutique sales increase year-to-year,
calculated on a per-boutique basis. For the fiscal years ended January 31, 1996,
1997 and 1998 and for the nine months ended October 31, 1998, sales made in
TIFFANY & CO. boutiques located in Mitsukoshi's stores constituted 21%, 18%, 17%
and 16%, respectively, of the Company's total net sales.
The Company and Mitsukoshi also have an operating relationship for the
TIFFANY & CO. flagship store in Tokyo's Ginza shopping district. Under the lease
and sub-lease arrangements related to the flagship store, Mitsukoshi retains
8.3% of net sales for most sales transactions within the flagship store. In
Tokyo, other than the flagship store, the Company may only establish TIFFANY &
CO. boutiques within Mitsukoshi's stores and TIFFANY & CO. jewelry may only be
sold in such boutiques.
Mitsukoshi has informed the Company that in 1999 it will close the annex to
one of its stores in Tokyo which currently houses a TIFFANY & CO. boutique. The
Company's operations in the annex to be closed will be consolidated with those
of the existing boutique in the adjoining store building.
For more information regarding the Company's business relationship with
Mitsukoshi, see the section entitled "Business with Mitsukoshi" in the Company's
Annual Report on Form 10-K for the fiscal year ended January 31, 1998 which has
been incorporated by reference into this prospectus.
14
<PAGE> 17
UNDERWRITING
Subject to the terms and conditions set forth in a U.S. purchase agreement
(the "U.S. Purchase Agreement") among the Company, Mitsukoshi (the "Selling
Stockholder") and Merrill Lynch, Pierce, Fenner & Smith Incorporated and ING
Baring Furman Selz LLC (collectively, the "U.S. Underwriters"), the Selling
Stockholder has agreed to sell to the U.S. Underwriters, and each of the U.S.
Underwriters severally and not jointly has agreed to purchase from the Selling
Stockholder, the number of shares of Common Stock set forth opposite its name
below.
<TABLE>
<CAPTION>
NUMBER OF
U.S. UNDERWRITER SHARES
---------------- ---------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith Incorporated..........
ING Baring Furman Selz LLC..................................
---------
Total.......................................... 3,104,000
=========
</TABLE>
The Company, the Selling Stockholder and Merrill Lynch International and
ING Barings (collectively, the "International Managers" and together with the
U.S. Underwriters, the "Underwriters") have also entered into an international
purchase agreement (the "International Purchase Agreement"). Subject to the
terms and conditions set forth in the International Purchase Agreement, and
concurrently with the sale of 3,104,000 shares of Common Stock to the U.S.
Underwriters pursuant to the U.S. Purchase Agreement, the Selling Stockholder
has agreed to sell to the International Managers, and the International Managers
severally have agreed to purchase from the Selling Stockholder, an aggregate of
776,000 shares of Common Stock. The initial public offering price per share and
the total underwriting discount per share of Common Stock are identical under
the U.S. Purchase Agreement and the International Purchase Agreement.
In the U.S. Purchase Agreement and the International Purchase Agreement,
the several U.S. Underwriters and the several International Managers,
respectively, have agreed, subject to the terms and conditions set forth
therein, to purchase all of the shares of Common Stock being sold pursuant to
each such agreement if any of the shares of Common Stock being sold pursuant to
such agreement are purchased. In the event of a default by an Underwriter, the
U.S. Purchase Agreement and the International Purchase Agreement provide that,
in certain circumstances, the purchase commitments of the non-defaulting
Underwriters may be increased or the Purchase Agreements may be terminated. The
closings with respect to the sale of shares of Common Stock to be purchased by
the U.S. Underwriters and the International Managers are conditioned upon one
another.
The U.S. Underwriters have advised the Company and the Selling Stockholder
that the U.S. Underwriters propose initially to offer the shares of Common Stock
to the public at the initial public offering price set forth on the cover page
of this prospectus, and to certain dealers at such price less a concession not
in excess of $ per share of Common Stock. The U.S. Underwriters may allow,
and such dealers may reallow, a discount not in excess of $ per share of
Common Stock to certain other dealers. After the initial public offering, the
public offering price, concession and discount may be changed.
The Selling Stockholder has granted options to the U.S. Underwriters,
exercisable for 30 days after the date of this prospectus, to purchase up to an
aggregate of 312,000 additional shares of Common Stock at the public offering
price set forth on the cover page of this prospectus, less the underwriting
discount. The U.S. Underwriters may exercise these options solely to cover
over-allotments, if any, made on the sale of the Common Stock offered hereby. To
the extent that the U.S. Underwriters exercise these options, each U.S.
Underwriter will be obligated, subject to certain conditions, to purchase a
number of additional shares of Common Stock proportionate to such U.S.
Underwriter's initial amount reflected in the foregoing table. The Selling
Stockholder also has granted options to the International Managers, exercisable
for 30 days after the date of this prospectus, to purchase up to an aggregate of
78,000 additional shares of Common Stock to cover over-allotments, if any, on
terms similar to those granted to the U.S. Underwriters.
15
<PAGE> 18
The following table shows the per share and total public offering price,
underwriting discount to be paid by the Selling Stockholder to the Underwriters
and the proceeds before expenses to the Selling Stockholder. This information is
presented assuming either no exercise or full exercise by the U.S. Underwriters
and the International Managers of their over-allotment options.
<TABLE>
<CAPTION>
WITHOUT WITH
PER SHARE OPTION OPTION
--------- ------- ------
<S> <C> <C> <C>
Public offering price.......................... $ $ $
Underwriting discount.......................... $ $ $
Proceeds, before expenses, to the Selling
Stockholder.................................. $ $ $
</TABLE>
The expenses of the Offerings (exclusive of the underwriting discount) are
estimated at $ and are payable in part by the Company and in part by
the Selling Stockholder.
The shares of Common Stock are being offered by several Underwriters,
subject to prior sale, when, as and if issued to and accepted by them, subject
to approval of certain legal matters by counsel for the Underwriters and certain
other conditions. The Underwriters reserve the right to withdraw, cancel or
modify such offer and to reject orders in whole or in part.
The Company has agreed, subject to certain exceptions, not to directly or
indirectly (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of or otherwise dispose of or transfer any shares
of Common Stock or securities convertible into or exchangeable or exercisable
for or repayable with Common Stock, whether now owned or thereafter acquired by
the person executing the agreement or with respect to which the person executing
the agreement thereafter acquires the power of disposition, or file a
registration statement under the Securities Act with respect to the foregoing or
(ii) enter into any swap or other agreement that transfers, in whole or in part,
the economic consequence of ownership of the Common Stock whether any such swap
or transaction is to be settled by delivery of Common Stock or other securities,
in cash or otherwise, without the prior written consent of Merrill Lynch,
Pierce, Fenner & Smith Incorporated on behalf of the Underwriters for a period
of 90 days after the date of this prospectus.
The U.S. Underwriters and the International Managers have entered into an
intersyndicate agreement (the "Intersyndicate Agreement") that provides for the
coordination of their activities. Pursuant to the Intersyndicate Agreement, the
U.S. Underwriters and the International Managers are permitted to sell shares of
Common Stock to each other for purposes of resale at the initial public offering
price, less an amount not greater than the selling concession. Under the terms
of the Intersyndicate Agreement, the U.S. Underwriters and any dealer to whom
they sell shares of Common Stock will not offer to sell or sell shares of Common
Stock to persons who are non-U.S. or non-Canadian persons or to persons they
believe intend to resell to persons who are non-U.S. or non-Canadian persons,
and the International Managers and any dealer to whom they sell shares of Common
Stock will not offer to sell or sell shares of Common Stock to U.S. persons or
to Canadian persons or to persons they believe intend to resell to U.S. or
Canadian persons, except in the case of transactions pursuant to the
Intersyndicate Agreement.
The Company and the Selling Stockholder have agreed to indemnify the U.S.
Underwriters and the International Managers against certain liabilities,
including certain liabilities under the Securities Act, or to contribute to
payments the U.S. Underwriters and the International Managers may be required to
make in respect thereof.
Until the distribution of Common Stock is completed, rules of the
Securities and Exchange Commission may limit the ability of the Underwriters and
certain selling group members to bid for and purchase the Common Stock. As an
exception to these rules, the U.S. Underwriters are permitted to engage in
certain transactions that stabilize the price of the Common Stock. Such
transactions consist of bids or purchases for the purpose of pegging, fixing or
maintaining the price of the Common Stock.
If the Underwriters create a short position in the Common Stock in
connection with the Offerings, i.e., if they sell more shares of Common Stock
than are set forth on the cover page of this Prospectus, the
16
<PAGE> 19
U.S. Underwriters may reduce that short position by purchasing Common Stock in
the open market. The U.S. Underwriters may also elect to reduce any short
position by exercising all or part of the over-allotment options described
above.
In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of the security to be higher than
it might be in the absence of such purchases.
Neither the Company nor any of the Underwriters makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the price of the Common Stock. In addition, neither
the Company nor any of the Underwriters makes any representation that the U.S.
Underwriters will engage in such transactions or that such transactions, once
commenced, will not be discontinued without notice.
ING Baring Furman Selz LLC, one of the U.S. Underwriters, was a
co-placement agent in connection with the Company's issuance of the Senior Notes
for which it received customary compensation. William A. Shutzer, a director of
the Company, is an executive officer of ING Baring Furman Selz LLC.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Common Stock
offered hereby will be passed upon for the Company by Gibson, Dunn & Crutcher
LLP, New York, New York. Charles K. Marquis, a director of the Company, was a
partner of Gibson, Dunn & Crutcher LLP during 1998. Certain legal matters
relating to the Offerings will be passed upon for the Underwriters by Shearman &
Sterling, New York, New York.
EXPERTS
The consolidated balance sheets of the Company as of January 31, 1998 and
1997 and the related consolidated statements of earnings, stockholders' equity
and cash flows for each of the three years in the period ended January 31, 1998,
incorporated by reference in this prospectus, have been incorporated herein in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of that firm as experts in accounting and auditing.
17
<PAGE> 20
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
3,880,000 SHARES
[TIFFANY & CO. LOGO]
COMMON STOCK
----------------
PROSPECTUS
----------------
MERRILL LYNCH & CO.
ING BARING FURMAN SELZ LLC
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 21
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
ALTERNATE PAGE FOR INTERNATIONAL PROSPECTUS
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED JANUARY 7, 1999
PROSPECTUS
3,880,000 SHARES
TIFFANY & CO.
COMMON STOCK
------------------------
Mitsukoshi, Ltd., a stockholder of Tiffany & Co., is selling
3,880,000 shares of Tiffany's Common Stock. The international managers will
offer 776,000 shares outside of the United States and Canada and the U.S.
underwriters will offer 3,104,000 shares in the United States and Canada.
The Common Stock trades on the New York Stock Exchange under the
symbol "TIF." On January 6, 1999, the last sale price of the Common Stock as
reported on the New York Stock Exchange was $56 13/16 per share.
INVESTING IN THE COMMON STOCK INVOLVES RISKS WHICH ARE DESCRIBED IN
THE "RISK FACTORS" SECTION BEGINNING ON PAGE 7 OF THIS PROSPECTUS.
------------------------
<TABLE>
<CAPTION>
PER SHARE TOTAL
--------- -----
<S> <C> <C>
Public offering price....................................... $ $
Underwriting discount....................................... $ $
Proceeds, before expenses, to Mitsukoshi.................... $ $
</TABLE>
The international managers may also purchase up to an additional
78,000 shares at the public offering price, less the underwriting discount,
within 30 days from the date of this prospectus to cover over-allotments. The
U.S. underwriters may similarly purchase up to an aggregate of an additional
312,000 shares.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
The shares of Common Stock will be ready for delivery in New York,
New York on or about , 1999.
------------------------
MERRILL LYNCH INTERNATIONAL ING BARINGS
------------------------
The date of this prospectus is , 1999
<PAGE> 22
ALTERNATE PAGE FOR INTERNATIONAL PROSPECTUS
UNDERWRITING
Subject to the terms and conditions set forth in an international purchase
agreement (the "International Purchase Agreement") among the Company, Mitsukoshi
(the "Selling Stockholder") and Merrill Lynch International and ING Barings
(collectively, the "International Managers"), the Selling Stockholder has agreed
to sell to the International Managers, and each of the International Managers
severally and not jointly has agreed to purchase from the Selling Stockholder,
the number of shares of Common Stock set forth opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF
INTERNATIONAL MANAGER SHARES
- ------------------------------------------------------------ ---------
<S> <C>
Merrill Lynch International.................................
ING Barings.................................................
-------
Total.......................................... 776,000
=======
</TABLE>
The Company, the Selling Stockholder and Merrill Lynch, Pierce, Fenner &
Smith Incorporated and ING Baring Furman Selz LLC (collectively, the "U.S.
Underwriters" and together with the International Managers, the "Underwriters")
have also entered into a U.S. purchase agreement (the "U.S. Purchase
Agreement"). Subject to the terms and conditions set forth in the U.S. Purchase
Agreement, and concurrently with the sale of 776,000 shares of Common Stock to
the International Managers pursuant to the International Purchase Agreement, the
Selling Stockholder has agreed to sell to the U.S. Underwriters, and the U.S.
Underwriters severally have agreed to purchase from the Selling Stockholder, an
aggregate of 3,104,000 shares of Common Stock. The initial public offering price
per share and the total underwriting discount per share of Common Stock are
identical under the International Purchase Agreement and the U.S. Purchase
Agreement.
In the International Purchase Agreement and the U.S. Purchase Agreement,
the several International Managers and the several U.S. Underwriters,
respectively, have agreed, subject to the terms and conditions set forth
therein, to purchase all of the shares of Common Stock being sold pursuant to
each such agreement if any of the shares of Common Stock being sold pursuant to
such agreement are purchased. In the event of a default by an Underwriter, the
U.S. Purchase Agreement and the International Purchase Agreement provide that,
in certain circumstances, the purchase commitments of the non-defaulting
Underwriters may be increased or the Purchase Agreements may be terminated. The
closings with respect to the sale of shares of Common Stock to be purchased by
the International Managers and the U.S. Underwriters are conditioned upon one
another.
The International Managers have advised the Company and the Selling
Stockholder that the International Managers propose initially to offer the
shares of Common Stock to the public at the initial public offering price set
forth on the cover page of this prospectus, and to certain dealers at such price
less a concession not in excess of $ per share of Common Stock. The
International Managers may allow, and such dealers may re-allow, a discount not
in excess of $ per share of Common Stock on sales to certain other dealers.
After the initial public offering, the public offering price, concession and
discount may be changed.
The Selling Stockholder has granted options to the International Managers,
exercisable for 30 days after the date of this prospectus, to purchase up to an
aggregate of 78,000 additional shares of Common Stock at the public offering
price set forth on the cover page of this prospectus, less the underwriting
discount. The International Managers may exercise these options solely to cover
over-allotments, if any, made on the sale of the Common Stock offered hereby. To
the extent that the International Managers exercise these options, each
International Manager will be obligated, subject to certain conditions, to
purchase a number of additional shares of Common Stock proportionate to such
International Manager's initial amount reflected in the foregoing table. The
Selling Stockholder also has granted options to the U.S. Underwriters,
exercisable for 30 days after the date of this prospectus, to purchase up to an
aggregate
15
<PAGE> 23
ALTERNATE PAGE FOR INTERNATIONAL PROSPECTUS
of 312,000 additional shares of Common Stock to cover over-allotments, if any,
on terms similar to those granted to the International Managers.
The following table shows the per share and total public offering price,
underwriting discount to be paid by the Selling Stockholder to the Underwriters
and the proceeds before expenses to the Selling Stockholder. This information is
presented assuming either no exercise or full exercise by the International
Managers and the U.S. Underwriters of their over-allotment options.
<TABLE>
<CAPTION>
WITHOUT WITH
PER SHARE OPTIONS OPTIONS
--------- ------- -------
<S> <C> <C> <C>
Public offering price........................... $ $ $
Underwriting discount........................... $ $ $
Proceeds, before expenses, to the Selling
Stockholder................................... $ $ $
</TABLE>
The expenses of the Offerings (exclusive of the underwriting discount) are
estimated at $ and are payable in part by the Company and in part by
the Selling Stockholder.
The shares of Common Stock are being offered by the several Underwriters,
subject to prior sale, when, as and if issued to and accepted by them, subject
to approval of certain legal matters by counsel for the Underwriters and certain
other conditions. The Underwriters reserve the right to withdraw, cancel or
modify such offer and to reject orders in whole or in part.
The Company has agreed, subject to certain exceptions, not to directly or
indirectly (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of or otherwise dispose of or transfer any shares
of Common Stock or securities convertible into or exchangeable or exercisable
for or repayable with Common Stock, whether now owned or thereafter acquired by
the person executing the agreement or with respect to which the person executing
the agreement thereafter acquires the power of disposition, or file a
registration statement under the Securities Act with respect to the foregoing or
(ii) enter into any swap or other agreement that transfers, in whole or in part,
the economic consequence of ownership of the Common Stock whether any such swap
or transaction is to be settled by delivery of Common Stock or other securities,
in cash or otherwise, without the prior written consent of Merrill Lynch,
Pierce, Fenner and Smith Incorporated on behalf of the Underwriters for a period
of 90 days after the date of this Prospectus.
The International Managers and the U.S. Underwriters have entered into an
intersyndicate agreement (the "Intersyndicate Agreement") that provides for the
coordination of their activities. Pursuant to the Intersyndicate Agreement, the
International Managers and the U.S. Underwriters are permitted to sell shares of
Common Stock to each other for purposes of resale at the initial public offering
price, less an amount not greater than the selling concession. Under the terms
of the Intersyndicate Agreement, the U.S. Underwriters and any dealer to whom
they sell shares of Common Stock will not offer to sell or sell shares of Common
Stock to persons who are non-U.S. or non-Canadian persons or to persons they
believe intend to resell to persons who are non-U.S. or non-Canadian persons,
and the International Managers and any dealer to whom they sell shares of Common
Stock will not offer to sell or sell shares of Common Stock to U.S. persons or
to Canadian persons or to persons they believe intend to resell to U.S. or to
Canadian persons, except in the case of transactions pursuant to the
Intersyndicate Agreement.
The Company and the Selling Stockholder have agreed to indemnify the
International Managers and the U.S. Underwriters against certain liabilities,
including certain liabilities under the Securities Act, or to contribute to
payments the U.S. Underwriters and the International Managers may be required to
make in respect thereof.
Until the distribution of Common Stock is completed, rules of the
Securities and Exchange Commission may limit the ability of the Underwriters and
certain selling group members to bid for and purchase the Common Stock. As an
exception to these rules, the U.S. Underwriters are permitted to
16
<PAGE> 24
ALTERNATE PAGE FOR INTERNATIONAL PROSPECTUS
engage in certain transactions that stabilize the price of the Common Stock.
Such transactions consist of bids or purchases for the purpose of pegging,
fixing or maintaining the price of the Common Stock.
If the Underwriters create a short position in the Common Stock in
connection with the Offerings, i.e., if they sell more shares of Common Stock
than are set forth on the cover page of this prospectus, the U.S. Underwriters
may reduce that short position by purchasing Common Stock in the open market.
The U.S. Underwriters may also elect to reduce any short position by exercising
all or part of the over-allotment options described above.
In general, purchases of a security for the purpose of stabilization or to
reduce a short position could cause the price of the security to be higher than
it might be in the absence of such purchases.
Neither the Company nor any of the Underwriters makes any representation or
prediction as to the direction or magnitude of any effect that the transactions
described above may have on the price of the Common Stock. In addition, neither
the Company nor any of the Underwriters makes any representation that the U.S.
Underwriters will engage in such transactions or that such transactions, once
commenced, will not be discontinued without notice.
Each Underwriter has agreed that (i) it has not offered or sold, and will
not offer or sell, in Hong Kong the shares of Common Stock by means of any
document except to a person whose ordinary business is to buy or sell shares or
debentures, whether as principal or agent, or in circumstances which do not
constitute an offer to the public within the meaning of the Companies Ordinance
(Cap. 32 of the Laws of Hong Kong), and (ii) it has not issued, and will not
issue, any invitation or advertisement relating to the Common Stock in Hong Kong
(except if permitted to do so under the securities laws of Hong Kong) other than
with respect to Common Stock which are intended to be disposed of to persons
outside Hong Kong or only to persons whose business involves the acquisition,
disposal or holding of securities whether as principal or agent.
Each Underwriter has acknowledged that this prospectus has not been
registered with the Registrar of Companies in Singapore and that the Common
Stock is offered in Singapore pursuant to an exemption invoked under section
106C of the Companies Act, Chapter 50 of Singapore (the "Singapore Companies
Act"). Accordingly, each Underwriter agrees that the Common Stock may not be
offered or sold, nor may this prospectus or any other offering document or
material relating to the Common Stock be circulated or distributed, directly or
indirectly, to the public or any member of the public in Singapore other than
(1) to an institutional investor or other body or person specified in section
106C of the Singapore Companies Act, or (2) to a sophisticated investor
specified in section 106D of the Singapore Companies Act, or (3) otherwise
pursuant to, and in accordance with the conditions of section 106E(2) of the
Singapore Companies Act or any other applicable exemption invoked under Division
5A of Part IV of the Singapore Companies Act.
Each of the Underwriters has agreed that it has not offered or sold, and it
will not offer or sell, directly or indirectly, any of the Common Stock in or to
residents of Japan or to any persons for reoffering or resale, directly or
indirectly, in Japan or to any resident of Japan except pursuant to an exemption
from the registration requirements of the Securities and Exchange Law available
thereunder and in compliance with the other relevant laws of Japan.
Each International Manager has agreed that (i) it has not offered or sold
and, prior to the expiration of the period of six months from the Closing Date,
will not offer or sell any shares of Common Stock 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 do not
constitute an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995; (ii) it 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 Common Stock in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or
17
<PAGE> 25
ALTERNATE PAGE FOR INTERNATIONAL PROSPECTUS
passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issuance of Common Stock to a person who
is of a kind described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on.
No action has been or will be taken in any jurisdiction (except in the
United States) that would permit a public offering of the shares of Common
Stock, or the possession, circulation or distribution of this prospectus or any
other material relating to the Company, the Selling Stockholder or shares of
Common Stock in any jurisdiction where action for that purpose is required.
Accordingly, the shares of Common Stock may not be offered or sold, directly or
indirectly, and neither this prospectus nor any other offering material or
advertisements in connection with the shares of Common Stock may be distributed
or published, in or from any country or jurisdiction except in compliance with
any applicable rules and regulations of any such country or jurisdiction.
Purchasers of the shares offered hereby may be required to pay stamp taxes
and other charges in accordance with the laws and practices of the country of
purchase in addition to the offering price set forth on the cover page hereof.
ING Baring Furman Selz LLC, one of the U.S. Underwriters, was a
co-placement agent in connection with the Company's issuance of the Senior Notes
for which it received customary compensation. William A. Shutzer, a director of
the Company, is an executive officer of ING Baring Furman Selz LLC.
LEGAL MATTERS
Certain legal matters with respect to the validity of the Common Stock
offered hereby will be passed upon for the Company by Gibson, Dunn & Crutcher
LLP, New York, New York. Charles K. Marquis, a director of the Company, was a
partner of Gibson, Dunn & Crutcher LLP during 1998. Certain legal matters
relating to the Offerings will be passed upon for the Underwriters by Shearman &
Sterling, New York, New York.
EXPERTS
The consolidated balance sheets of the Company as of January 31, 1998 and
1997 and the related consolidated statements of earnings, stockholders' equity
and cash flows for each of the three years in the period ended January 31, 1998,
incorporated by reference in this prospectus, have been incorporated herein in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of that firm as experts in accounting and auditing.
18
<PAGE> 26
ALTERNATE PAGE FOR INTERNATIONAL PROSPECTUS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
3,880,000 SHARES
[TIFFANY & CO. LOGO]
COMMON STOCK
----------------
PROSPECTUS
----------------
MERRILL LYNCH INTERNATIONAL
ING BARINGS
, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 27
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses to be incurred in connection with the distribution of the
securities to be registered hereby are as follows:
<TABLE>
<CAPTION>
AMOUNT TO BE PAID BY AMOUNT TO BE PAID BY
SELLING STOCKHOLDER COMPANY
--------------------- ---------------------
<S> <C> <C>
Securities and Exchange Commission
registration fee.................... $ -- $ 58,427
NASD filing fee....................... -- 21,517
Printing expenses..................... 50,000 --
Accounting fees and expenses.......... -- 50,000
Legal fees and expenses............... 150,000 30,000
Blue sky fees and expenses............ 5,000 --
Transfer Agent's fees and expenses.... -- 5,000
Miscellaneous......................... -- 5,056
-------- --------
Total....................... $205,000 $170,000
======== ========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Restated Certificate of Incorporation provides that a
director shall not be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director except: (i) for any
breach of the director's duty of loyalty to the Company or its stockholders;
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) under Section 174 of the
Delaware General Corporation Law; or (iv) for any transaction from which the
director derived any improper personal benefit. Article VI of the Company's
By-laws provides that the Company shall indemnify each director, officer or
employee of the Company to the fullest extent provided by the laws of the State
of Delaware.
The Company has entered into an indemnity agreement (the "Indemnity
Agreement") with each director and executive officer of the Company. By its
terms, the Indemnity Agreement holds directors and officers harmless against
amounts that they become legally obligated to pay because of acts or omissions
that they commit or permit to occur while acting as agents of the Company. The
Indemnity Agreement specifically provides that the Company shall pay the costs
incurred by an indemnified party (the "Indemnitee") in connection with a
derivative action, including the cost of settling such a claim. Pursuant to
Section 2(b) of the Indemnity Agreement, however, the Company may not indemnify
an Indemnitee: (i) in respect of a claim based upon or attributable to the
Indemnitee gaining in fact any personal profit or advantage to which he is not
legally entitled; (ii) for an accounting of profits made from the purchase or
sale by the Indemnitee of securities of the Company within the meaning of
Section 16(b) of the Securities Exchange Act of 1934; (iii) on account of the
Indemnitee's deliberately dishonest conduct; or (iv) for a violation of the
Delaware General Corporation Law pertaining to the improper payment of a
dividend or redemption of stock.
The Indemnity Agreement provides that litigation expenses shall be advanced
to the Indemnitee at his request provided that he undertakes to repay the amount
advanced if it is ultimately determined that he is not entitled to
indemnification for such expenses. The disinterested members of the Board of
Directors, independent counsel or the stockholders may determine whether an
indemnification payment should be made in a particular instance. Should
indemnification be withheld, the Indemnitee is entitled to seek a final judicial
determination or an award in arbitration with respect to his right to
indemnification under the Indemnity Agreement. Should a court of competent
jurisdiction determine that the indemnification
II-1
<PAGE> 28
provided in the Indemnity Agreement is unavailable to the Indemnitee in whole or
in part, the Company shall contribute to the payment of the Indemnitee's losses
in an amount that is just and equitable, except losses attributable to conduct
on the part of the Indemnitee described in Section 2(b) of the Indemnity
Agreement, referred to above. The Indemnity Agreement provides that it is not
just and equitable for the Company to pay amounts in excess of: (i) in a case
where the Indemnitee is a director of the Company, but not an officer of the
Company, an amount equal to five times the amount of fees paid to the Indemnitee
for serving as a director during the 12 months preceding the commencement of the
subject proceeding; or (ii) in a case where the Indemnitee is a director and an
officer of the Company, the amount set forth in clause (i) plus 25% of the
aggregate cash compensation paid to the Indemnitee for service in such office(s)
during said 12 months; or (iii) in a case where the Indemnitee is an officer of
the Company, 25% of the aggregate cash compensation paid to the Indemnitee for
service in such office(s) during said 12 months.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<C> <S>
1.1 Form of U.S. Purchase Agreement
1.2 Form of International Purchase Agreement
4.1 Description of the Company's Common Stock contained in the
Registration Statement filed with the SEC on Form S-1
(Registration No. 33-12818), as most recently amended on May
5, 1987, in the Prospectus for the Company's Common Stock
dated May 5, 1987, as supplemented by the Registration
Statement dated November 18, 1988, filed with the SEC on
Form 8-A, as most recently amended by Form 8-A/A dated
September 24, 1998 and filed on September 25, 1998.
5.1 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit
5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of Attorney (included as part of signature pages)
</TABLE>
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes (1) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement to include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement, (2)
that, for purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and (3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the provisions described in Item 15 above, or otherwise, the
Company has been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is therefore
II-2
<PAGE> 29
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE> 30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on January 7, 1999.
TIFFANY & CO.
By: /s/ JAMES N. FERNANDEZ
------------------------------------
James N. Fernandez
Executive Vice President and
Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS: that each person whose signature appears
below hereby constitutes and appoints James N. Fernandez and Patrick B. Dorsey,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to the
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as full to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ WILLIAM R. CHANEY Chairman of the Board of Directors January 7, 1999
- ------------------------------------------------ and Chief Executive Officer
William R. Chaney (Principal Executive Officer and
Director)
/s/ JAMES N. FERNANDEZ Executive Vice President and Chief January 7, 1999
- ------------------------------------------------ Financial Officer
James N. Fernandez (Principal Financial Officer)
/s/ WARREN S. FELD Controller January 7, 1999
- ------------------------------------------------ (Principal Accounting Officer)
Warren S. Feld
/s/ MICHAEL J. KOWALSKI President and Chief Operating January 7, 1999
- ------------------------------------------------ Officer (Director)
Michael J. Kowalski
/s/ ROSE MARIE BRAVO Director January 7, 1999
- ------------------------------------------------
Rose Marie Bravo
/s/ SAMUEL L. HAYES III Director January 7, 1999
- ------------------------------------------------
Samuel L. Hayes III
</TABLE>
II-4
<PAGE> 31
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ CHARLES K. MARQUIS Director January 7, 1999
- ------------------------------------------------
Charles K. Marquis
/s/ JAMES E. QUINN Vice Chairman and Director January 7, 1999
- ------------------------------------------------
James E. Quinn
/s/ YOSHIAKI SAKAKURA Director January 7, 1999
- ------------------------------------------------
Yoshiaki Sakakura
/s/ WILLIAM A. SHUTZER Director January 7, 1999
- ------------------------------------------------
William A. Shutzer
/s/ GERALDINE STUTZ Director January 7, 1999
- ------------------------------------------------
Geraldine Stutz
</TABLE>
II-5
<PAGE> 1
Exhibit 1.1
S&S DRAFT
01/06/99
TIFFANY & CO.
(a Delaware corporation)
3,104,000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
Dated: , 1999
<PAGE> 2
TABLE OF CONTENTS
U.S. PURCHASE AGREEMENT
<TABLE>
<S> <C>
SECTION 1. Representations and Warranties........................................................ 4
(a) Representations and Warranties by the Company......................................... 4
(i) Compliance with Registration Requirements.................................... 4
(ii) Incorporated Documents....................................................... 5
(iii) Financial Statements......................................................... 5
(iv) No Material Adverse Change in Business....................................... 5
(v) Good Standing of the Company................................................. 6
(vi) Good Standing of Subsidiaries................................................ 6
(vii) Capitalization............................................................... 6
(viii) Authorization of Agreements.................................................. 7
(ix) Absence of Defaults and Conflicts............................................ 7
(x) Absence of Proceedings....................................................... 8
(b) Representations and Warranties by the Selling Shareholder............................. 8
(i) Accurate Disclosure.......................................................... 8
(ii) Authorization of Agreements.................................................. 8
(iii) Good and Marketable Title.................................................... 9
(iv) Due Execution of Power of Attorney and Custody Agreement..................... 9
(v) Absence of Manipulation...................................................... 10
(vi) Absence of Further Requirements.............................................. 10
(vii) Certificates Suitable for Transfer........................................... 10
(viii) No Association with NASD..................................................... 10
(c) Officer's Certificates................................................................ 10
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing....................................... 11
(a) Initial Securities.................................................................... 11
(b) Option Securities..................................................................... 11
(c) Payment............................................................................... 11
(d) Denominations; Registration........................................................... 12
SECTION 3. Covenants of the Company.............................................................. 12
(a) Compliance with Securities Regulations and Commission Requests........................ 12
(b) Filing of Amendments.................................................................. 13
(c) Delivery of Registration Statements................................................... 13
(d) Delivery of Prospectuses.............................................................. 13
(e) Continued Compliance with Securities Laws............................................. 14
(f) Blue Sky Qualifications............................................................... 14
(g) Rule 158.............................................................................. 15
(h) Listing............................................................................... 15
(i) Restriction on Sale of Securities..................................................... 15
(j) Reporting Requirements................................................................ 15
</TABLE>
<PAGE> 3
ii
<TABLE>
<S> <C>
SECTION 4. Payment of Expenses................................................................... 15
(a) Expenses of the Company............................................................... 15
(b) Expenses of the Selling Shareholder................................................... 16
(c) Termination of Agreement.............................................................. 16
(d) Allocation of Expenses................................................................ 16
SECTION 5. Conditions of U.S. Underwriters' Obligations.......................................... 16
(a) Effectiveness of Registration Statement............................................... 16
(b) Opinions of Counsel for Company....................................................... 17
(c) Opinions of Counsel for the Selling Shareholder....................................... 17
(d) Opinion of Counsel for U.S. Underwriters.............................................. 17
(e) Officers' Certificate................................................................. 17
(f) Certificate of Selling Shareholder.................................................... 18
(g) Accountants' Comfort Letter........................................................... 18
(h) Bring-down Comfort Letter............................................................. 18
(i) Approval of Listing................................................................... 18
(j) Purchase of Initial International Securities.......................................... 18
(k) Conditions to Purchase of U.S. Option Securities...................................... 19
(l) Additional Documents.................................................................. 20
(m) Termination of Agreement.............................................................. 20
SECTION 6. Indemnification....................................................................... 20
(a) Indemnification of U.S. Underwriters.................................................. 20
(b) Indemnification of Company, Directors and Officers and Selling
Shareholder........................................................................... 22
(c) Actions against Parties; Notification................................................. 22
(d) Settlement without Consent if Failure to Reimburse.................................... 23
(e) Other Agreements with Respect to Indemnification...................................... 23
SECTION 7. Contribution.......................................................................... 23
SECTION 8. Representations, Warranties and Agreements to Survive Delivery........................ 25
SECTION 9. Termination of Agreement.............................................................. 25
(a) Termination; General.................................................................. 25
(b) Liabilities........................................................................... 26
SECTION 10. Default by One or More of the U.S. Underwriters............................................ 26
SECTION 11. Notices.................................................................................... 27
SECTION 12. Parties.................................................................................... 27
SECTION 13. Governing Law and Time..................................................................... 27
SECTION 14. Effect of Headings......................................................................... 27
</TABLE>
<PAGE> 4
iii
<TABLE>
<S> <C>
SCHEDULES
Schedule A - List of U.S. Underwriters......................................................... Sch A-1
Schedule B - Pricing Information............................................................... Sch B-1
Schedule C - List of Subsidiaries.............................................................. Sch C-1
EXHIBITS
Exhibit A-1 - Form of Opinion of Company's Counsel............................................ A-1-1
Exhibit A-2 - Form of Opinion of Gibson, Dunn & Crutcher LLP.................................. A-2-1
Exhibit B - Form of Opinion of Counsel for the Selling Shareholder............................ B-1
</TABLE>
<PAGE> 5
TIFFANY & CO.
(a Delaware corporation)
3,104,000 Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
ING Baring Furman Selz LLC
as U.S. Representatives of the several U.S. Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Tiffany & Co., a Delaware corporation (the "Company"), and Mitsukoshi,
Ltd., a Japanese corporation (the "Selling Shareholder"), confirm their
respective agreements with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch") and each of the other U.S. Underwriters
named in Schedule A hereto (collectively, the "U.S. Underwriters", which term
shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Merrill Lynch and ING Baring Furman Selz LLC are
acting as representatives (in such capacity, the "U.S. Representatives"), with
respect to (i) the sale by the Selling Shareholder, and the purchase by the U.S.
Underwriters, acting severally and not jointly, of 3,104,000 shares of Common
Stock, par value $.01 per share, of the Company ("Common Stock") and (ii) the
grant by the Selling Shareholder to the U.S. Underwriters, acting severally and
not jointly, of the option described in Section 2(b) hereof to purchase all or
any part of 312,000 additional shares of Common Stock to cover over-allotments,
if any. The aforesaid 3,104,000 shares of Common Stock (the "Initial U.S.
Securities") to be purchased by the U.S. Underwriters and all or any part of the
312,000 shares of Common Stock subject to the option described in Section 2(b)
hereof (the "U.S. Option Securities") are hereinafter called, collectively, the
"U.S. Securities".
<PAGE> 6
2
It is understood that the Company and the Selling Shareholder are
concurrently entering into an agreement dated the date hereof (the
"International Purchase Agreement") providing for (i) the offering by the
Selling Shareholder of an aggregate of 776,000 shares of Common Stock (the
"Initial International Securities") through arrangements with certain
underwriters outside the United States and Canada (the "International Managers")
for which Merrill Lynch International and ING Barings are acting as lead
managers (the "Lead Managers") and (ii) the grant by the Selling Shareholder to
the International Managers, acting severally and not jointly, of an option to
purchase all or any part of the International Managers' pro rata portion of up
to 78,000 additional shares of Common Stock solely to cover over-allotments, if
any (the "International Option Securities" and, together with the U.S. Option
Securities, the "Option Securities"). The Initial International Securities and
the International Option Securities are hereinafter called the "International
Securities". It is understood that the Company is not obligated to sell and the
U.S. Underwriters are not obligated to purchase, any Initial U.S. Securities
unless all of the Initial International Securities are contemporaneously
purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters", the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities", and the U.S. Securities and the International Securities
are hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (in such capacity, the "Global Coordinator").
The Company and the Selling Shareholder understand that the U.S.
Underwriters propose to make a public offering of the U.S. Securities as soon as
the U.S. Representatives deem advisable after this Agreement has been executed
and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333- ) covering
the registration of the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International
<PAGE> 7
3
Prospectus"). The Form of International Prospectus is identical to the Form of
U.S. Prospectus, except for their respective front cover pages, sections
entitled "Underwriting" and back cover pages. The information included in such
prospectus or in such Term Sheet, as the case may be, that was omitted from such
registration statement at the time it became effective but that is deemed to be
part of such registration statement at the time it became effective (a) pursuant
to paragraph (b) of Rule 430A is referred to as "Rule 430A Information" or (b)
pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434 Information."
Each Form of U.S. Prospectus and Form of International Prospectus used before
such registration statement became effective, and any prospectus that omitted,
as applicable, the Rule 430A Information or the Rule 434 Information, that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final form of U.S.
Prospectus and the final Form of International Prospectus, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the forms first furnished to the Underwriters for use in
connection with the offering of the Securities are herein called the "U.S.
Prospectus" and the "International Prospectus", respectively, and, collectively,
the "Prospectuses". If Rule 434 is relied on, the terms "U.S. Prospectus" and
"International Prospectus" shall refer to the preliminary U.S. Prospectus
dated , 1999 and preliminary International Prospectus dated ,
1999, respectively, each together with the applicable Term Sheet and all
references in this Agreement to the date of such Prospectuses shall mean the
date of the applicable Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the U.S.
Prospectus, the International Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of U.S.
Prospectus and Form of International Prospectus) or the Prospectuses (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of U.S. Prospectus and Form of International Prospectus) or
the Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
<PAGE> 8
4
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectuses, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each U.S. Underwriter as of the date hereof, as of
the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each U.S.
Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective, the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither of the Prospectuses nor any
amendments or supplements thereto, at the time the Prospectuses or any
amendments or supplements thereto were issued and at the Closing Time
(and, if any U.S. Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If Rule 434 is used, the
Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the U.S.
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any U.S. Underwriter through the
U.S. Representatives or by the Selling Shareholder expressly for use in
the Registration Statement or the U.S. Prospectus.
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to
<PAGE> 9
5
Rule 424 under the 1933 Act, complied when so filed in all material
respects with the 1933 Act Regulations and each preliminary prospectus
and the Prospectuses delivered to the Underwriters for use in
connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectuses, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectuses, at the time
the Registration Statement became effective, at the time the
Prospectuses were issued and at the Closing Time (and, if any U.S.
Option Securities are purchased, at the Date of Delivery), did not and
will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(iii) Financial Statements. The financial statements included
in the Registration Statement and the Prospectuses, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, shareholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectuses present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular quarterly dividends on the
Common Stock in amounts per share that are consistent with past
practice, there has
<PAGE> 10
6
been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(v) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock
of each such Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are the
subsidiaries listed on Schedule C hereto.
(vii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectuses in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or pursuant to the exercise of convertible securities or
options referred to in the Prospectuses). The shares of issued and
outstanding capital stock of the Company, including the Securities to
be purchased by the Underwriters from the Selling Shareholder, have
been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company, including the Securities to be purchased by the Underwriters
from the Selling Shareholder, was
<PAGE> 11
7
issued in violation of the preemptive or other similar rights of any
securityholder of the Company arising under applicable law, under the
Company's charter or by-laws or under any agreement to which the
Company is a party.
(viii) Authorization of Agreements. This Agreement and the
International Purchase Agreement have been duly authorized, executed
and delivered by the Company.
(ix) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the International
Purchase Agreement and the consummation of the transactions
contemplated in this Agreement, the International Purchase Agreement
and in the Registration Statement and compliance by the Company with
its obligations under this Agreement and the International Purchase
Agreement have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation
of the provisions of the charter or by-laws of the Company or any
subsidiary or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations, nor will
such action cause the preferred share purchase rights issued pursuant
to the Rights Agreement, dated as of November 17, 1988, as amended,
between the Company and Chase Manhattan Bank, successor to
Manufacturers Hanover Trust Company, as Rights Agent, (the "Rights
Agreement") to become exercisable or cause any Underwriter to become an
Acquiring Person (as defined in the Rights Agreement). As used herein,
a "Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any subsidiary.
<PAGE> 12
8
(x) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely affect
the consummation of the transactions contemplated in this Agreement and
the International Purchase Agreement or the performance by the Company
of its obligations hereunder or thereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(b) Representations and Warranties by the Selling Shareholder. The
Selling Shareholder represents and warrants to each U.S. Underwriter as of the
date hereof, as of the Closing Time, and as of each Date of Delivery (if any)
and agrees with each U.S. Underwriter, as follows:
(i) Accurate Disclosure. To the best knowledge of the Selling
Shareholder, the representations and warranties of the Company
contained in Section 1(a) hereof are true and correct; the Selling
Shareholder has reviewed and is familiar with the Registration
Statement and the Prospectuses and neither of the Prospectuses nor any
amendments or supplements thereto includes any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties set forth in this paragraph 2(b)(i) shall only apply to
statements or omissions in the Registration Statement or the
Prospectuses with reference to information relating to such Selling
Shareholder; the Selling Shareholder is not prompted to sell the
Securities to be sold by the Selling Shareholder hereunder by any
information concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectuses.
(ii) Authorization of Agreements. The Selling Shareholder has
the full right, power and authority to enter into this Agreement, the
International Purchase Agreement and a Power of Attorney and Custody
Agreement (the "Power of Attorney and Custody Agreement") and to sell,
transfer and deliver the Securities to be sold by the Selling
Shareholder hereunder and under the International Purchase Agreement.
The execution and delivery of this Agreement, the International
Purchase Agreement and the Power of Attorney and Custody Agreement and
the sale and delivery of the Securities to be sold by the Selling
Shareholder and the consummation of the transactions contemplated
herein and therein and compliance by the Selling Shareholder with its
obligations hereunder and
<PAGE> 13
9
thereunder have been duly authorized by the Selling Shareholder and do
not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any tax,
lien, charge or encumbrance upon the Securities to be sold by the
Selling Shareholder or any property or assets of the Selling
Shareholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other
agreement or instrument to which the Selling Shareholder is a party or
by which the Selling Shareholder may be bound, or to which any of the
property or assets of the Selling Shareholder is subject (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or
by-laws or other organizational instrument of the Selling Shareholder,
if applicable, or any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Selling Shareholder or any of its properties.
(iii) Good and Marketable Title. The Selling Shareholder has
and will at the Closing Time and on each Date of Delivery have good and
marketable title to the U.S. Securities to be sold by the Selling
Shareholder hereunder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind, other than pursuant to this Agreement; and upon delivery of such
U.S. Securities and payment of the purchase price therefor as herein
contemplated, assuming each such U.S. Underwriter has no notice of any
adverse claim, each of the U.S. Underwriters will receive good and
marketable title to the U.S. Securities purchased by it from the
Selling Shareholder, free and clear of any security interest, mortgage,
pledge, lien, charge, claim, equity or encumbrance of any kind.
(iv) Due Execution of Power of Attorney and Custody Agreement.
The Selling Shareholder has duly executed and delivered, in the form
heretofore furnished to the Global Coordinator, the Power of Attorney
and Custody Agreement with___________ as attorney(s)-in-fact (the
"Attorney(s)-in-Fact") and ___________, as custodian (the "Custodian");
the Custodian is authorized by the Selling Shareholder to deliver the
U.S. Securities to be sold by the Selling Shareholder hereunder and to
accept payment therefor; and the Attorney-in-Fact is authorized to
execute and deliver this Agreement and the certificate referred to in
Section 5(f) or that may be required pursuant to Sections 5(k) and 5(l)
on behalf of the Selling Shareholder, to sell, assign and transfer to
the U.S. Underwriters the U.S. Securities to be sold by the Selling
Shareholder hereunder, to determine the purchase price to be paid by
the U.S. Underwriters to the Selling Shareholder, as provided in
Section 2(a) hereof, to authorize the delivery of the U.S. Securities
to be sold by the Selling Shareholder hereunder, to accept payment
therefor, and otherwise to act on behalf of the Selling Shareholder in
connection with this Agreement.
<PAGE> 14
10
(v) Absence of Manipulation. The Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(vi) Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by the Selling
Shareholder of its obligations hereunder, under the International
Purchase Agreement or in the Power of Attorney and Custody Agreement,
or in connection with the sale and delivery of the Securities hereunder
or under the International Purchase Agreement or the consummation of
the transactions contemplated by this Agreement or the International
Purchase Agreement, except such as may have previously been made or
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws.
(vii) Certificates Suitable for Transfer. Certificates for all
of the Securities to be sold by the Selling Shareholder pursuant to
this Agreement and the International Purchase Agreement, in suitable
form for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Custodian with
irrevocable conditional instructions to deliver such Securities to the
Underwriters pursuant to this Agreement and the International Purchase
Agreement.
(viii) No Association with NASD. Neither the Selling
Shareholder nor any of its affiliates directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, or has any other association with (within the
meaning of Article I, Section 1(m) of the By-laws of the National
Association of Securities Dealers, Inc.), any member firm of the
National Association of Securities Dealers, Inc.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Global Coordinator, the
U.S. Representatives or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby; and any certificate signed by or on behalf of the
Selling Shareholder as such and delivered to the Global Coordinator, U.S.
Representatives or to counsel for the U.S. Underwriters pursuant to the terms of
this Agreement shall be deemed a representation and warranty by the Selling
Shareholder to the U.S. Underwriters as to the matters covered thereby.
<PAGE> 15
11
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Selling Shareholder agrees to sell to each U.S. Underwriter,
severally and not jointly, and each U.S. Underwriter, severally and not jointly,
agrees to purchase from the Selling Shareholder, at the price per share set
forth in Schedule B, the number of Initial U.S. Securities set forth in Schedule
A opposite the name of such U.S. Underwriter, plus any additional number of U.S.
Securities which such U.S. Underwriter may become obligated to purchase pursuant
to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Shareholder hereby grants an option to the U.S.
Underwriters, severally and not jointly, to purchase up to an additional 312,000
shares of Common Stock, at the price per share set forth in Schedule B, less an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial U.S. Securities but not payable on the U.S. Option
Securities. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial U.S. Securities upon notice by the Global
Coordinator to the Company and to the Selling Shareholder setting forth the
number of U.S. Option Securities as to which the several U.S. Underwriters are
then exercising the option and the time and date of payment and delivery for
such U.S. Option Securities. Any such time and date of delivery for the U.S.
Option Securities (a "Date of Delivery") shall be determined by the Global
Coordinator, but shall not be later than seven (7) full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the
U.S. Option Securities, each of the U.S. Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of U.S. Option
Securities then being purchased which the number of Initial U.S. Securities set
forth in Schedule A opposite the name of such U.S. Underwriter bears to the
total number of Initial U.S. Securities, subject in each case to such
adjustments as the Global Coordinator in its discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Shearman & Sterling, 599 Lexington Avenue, New York, New York 10022, or at such
other place as shall be agreed upon by the Global Coordinator, the Company and
the Selling Shareholder, at 9:00 A.M. (Eastern time) on the third (fourth, if
the pricing occurs after 4:30 p.m. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten (10) business days after such
date as shall be agreed upon by the Global Coordinator, the Company and the
Selling Shareholder (such time and date of payment and delivery being herein
called "Closing Time").
<PAGE> 16
12
In addition, in the event that any or all of the U.S. Option Securities
are purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator, the Company and the Selling Shareholder, on each Date of
Delivery as specified in the notice from the Global Coordinator to the Company
and the Selling Shareholder.
Payment shall be made to the Selling Shareholder by wire transfer of
immediately available funds to a bank account designated by the Custodian
pursuant to the Selling Shareholder's Power of Attorney and Custody Agreement,
against delivery to the U.S. Representatives for the respective accounts of the
U.S. Underwriters of certificates for the U.S. Securities to be purchased by
them. It is understood that each U.S. Underwriter has authorized the U.S.
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Initial U.S. Securities and the U.S.
Option Securities, if any, which it has agreed to purchase. Merrill Lynch,
individually and not as representative of the U.S. Underwriters, may (but shall
not be obligated to) make payment of the purchase price for the Initial U.S.
Securities to be purchased by any U.S. Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such U.S. Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial U.S.
Securities shall be in such denominations and registered in such names as the
U.S. Representatives may request in writing at least one full business day
before the Closing Time or the relevant Date of Delivery, as the case may be.
The certificates for the Initial U.S. Securities and the U.S. Option Securities,
if any, will be made available for examination and packaging by the U.S.
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
U.S. Underwriter as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify
the Global Coordinator immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectuses or any
amended Prospectuses shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or
<PAGE> 17
13
suspending the use of any preliminary prospectus, or of the suspension
of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file
such prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)),
any Term Sheet or any amendment, supplement or revision to either any
prospectus included in the Registration Statement at the time it became
effective or to the Prospectuses, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Global Coordinator with copies
of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use
any such document to which the Global Coordinator or counsel for the
U.S. Underwriters shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the U.S. Representatives and counsel for
the U.S. Underwriters, without charge, signed copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents
and certificates of experts, and will also deliver to the U.S.
Representatives, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the U.S. Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the U.S.
Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each U.S. Underwriter, without charge, as many copies of each
preliminary prospectus as such U.S. Underwriter reasonably requested,
and the Company hereby consents to the use of such copies for purposes
permitted by the 1933 Act. The Company will furnish to each U.S.
Underwriter, without charge, during the period when the U.S. Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the U.S. Prospectus (as amended or supplemented) as
such U.S. Underwriter may reasonably request. The U.S. Prospectus and
any amendments or supplements thereto furnished to
<PAGE> 18
14
the U.S. Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T. The expenses of
complying with this Section 3(d) shall be borne by the Company or by
the Selling Shareholder in the manner contemplated by Section 4 in
respect of any amendment or supplement required during the nine-month
period after the date of this Agreement and by the U.S. Underwriters
thereafter.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement, the
International Purchase Agreement and in the Prospectuses. If at any
time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the
opinion of counsel for the U.S. Underwriters or for the Company, to
amend the Registration Statement or amend or supplement any Prospectus
in order that the Prospectuses will not include any untrue statements
of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in the light of the
circumstances existing at the time any such Prospectus is delivered to
a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend
or supplement any Prospectus in order to comply with the requirements
of the 1933 Act or the 1933 Act Regulations, the Company will promptly
prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectuses
comply with such requirements, and the Company will furnish to the U.S.
Underwriters such number of copies of such amendment or supplement as
the U.S. Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the U.S. Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions as the Global Coordinator may
designate and to maintain such qualifications in effect for a period of
not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less
<PAGE> 19
15
than one year from the effective date of the Registration Statement and
any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to effect
the listing of the Securities on the New York Stock Exchange.
(i) Restriction on Sale of Securities. During a period of 90
days from the date of the Prospectus, the Company will not, without the
prior written consent of the Global Coordinator, (i) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or
dispose of any share of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Prospectus, (B)
any shares of Common Stock issued or options to purchase Common Stock
granted pursuant to existing employee benefit plans of the Company
referred to in the Prospectus or (C) any shares of Common Stock issued
pursuant to any non-employee director stock plan or dividend
reinvestment plan.
(j) Reporting Requirements. The Company, during the period
when the Prospectuses are required to be delivered under the 1933 Act
or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses of the Company. The
Company will pay or cause to be paid all expenses incident to the performance of
its obligations under this Agreement, including (i) the preparation and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, issuance
and delivery of the certificates for the Securities to the Underwriters, (iii)
the fees and disbursements of the Company's counsel, accountants and other
advisors, (iv) the
<PAGE> 20
16
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (v) the preparation and delivery to the Underwriters of copies of the
Blue Sky Survey and any supplement thereto, (vi) the fees and expenses of any
transfer agent or registrar for the Securities, and (vii) the fees and expenses
incurred in connection with the listing of the Securities on the New York Stock
Exchange.
(b) Expenses of the Selling Shareholder. The Selling Shareholder will
pay all expenses incident to the performance of its obligations under, and the
consummation of the transactions contemplated by this Agreement, including (i)
any stamp duties, capital duties and stock transfer taxes, if any, payable upon
the sale of the Securities to the Underwriters, and their transfer between the
Underwriters pursuant to an agreement between such Underwriters, (ii) the fees
and disbursements of its counsel and accountants and (iii) the costs of printing
the Registration Statement, each preliminary prospectus, any Term Sheets and the
Prospectuses and any amendments or supplements thereto.
(c) Termination of Agreement. If this Agreement is terminated by the
U.S. Representative in accordance with the provisions of Section 5, Section
9(a)(i) or Section 11 hereof, the Selling Shareholder shall reimburse the U.S.
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the U.S.
Underwriters.
(d) Allocation of Expenses. The provisions of this Section 4 shall not
affect any agreement that the Company and the Selling Shareholder may have made
or may hereinafter make for the sharing of such costs and expenses.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The
obligations of the several U.S. Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Shareholder contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company or on behalf of the Selling
Shareholder delivered pursuant to the provisions hereof, to the performance by
the Company and the Selling Shareholder of their respective covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the U.S.
<PAGE> 21
17
Underwriters and to the Selling Shareholder. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing
such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A) or, if the Company has
elected to rely upon Rule 434, a Term Sheet shall have been filed with
the Commission in accordance with Rule 424(b).
(b) Opinions of Counsel for Company. At Closing Time, the U.S.
Representatives shall have received the favorable opinions, dated as of
Closing Time, of (i) Patrick B. Dorsey, Senior Vice President,
Secretary and General Counsel of the Company, and (ii) Gibson, Dunn &
Crutcher LLP, counsel for the Company, in form and substance
satisfactory to counsel for the U.S. Underwriters, together with signed
or reproduced copies of such letter for each of the other U.S.
Underwriters to the effect set forth in Exhibit A-1 and Exhibit A-2,
respectively, hereto and to such further effect as counsel to the U.S.
Underwriters may reasonably request.
(c) Opinions of Counsel for the Selling Shareholder. At the
Closing Time, the U.S. Representatives shall have received the
favorable opinions, dated as of the Closing Time, of (i) Salans
Hertzfeld Heilbronn Christy & Viener, U.S. counsel for the Selling
Shareholder, and (ii) , Japanese counsel for the Selling
Shareholder, in form and substance satisfactory to counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter
for each of the other U.S. Underwriters to the effect set forth in
Exhibit B-1 and Exhibit B-2, respectively, hereto and to such further
effect as counsel to the U.S. Underwriters may reasonably request.
(d) Opinion of Counsel for U.S. Underwriters. At the Closing
Time, the U.S. Representatives shall have received the favorable
opinion, dated as of the Closing Time, of Shearman & Sterling, counsel
for the U.S. Underwriters, together with signed or reproduced copies of
such letter for each of the other U.S. Underwriters with respect to the
matters set forth in clauses and the penultimate paragraph of
Exhibit A-2 hereto. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of
the State of New York and the federal law of the United States, upon
the opinions of counsel satisfactory to Merrill Lynch. Such counsel may
also state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public
officials.
(e) Officers' Certificate. At the Closing Time, there shall
not have been, since the date hereof or since the respective dates as
of which information is given in the Prospectuses, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries
<PAGE> 22
18
considered as one enterprise, whether or not arising in the ordinary
course of business, and the U.S. Representatives shall have received a
certificate of the Company signed by the President or a Vice President
of the Company and by the chief financial or chief accounting officer
of the Company, dated as of the Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the
representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and
as of the Closing Time, (iii) the Company has complied in all material
respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Closing Time, and (iv)
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the officers signing the
certificate, are pending or are contemplated by the Commission.
(f) Certificate of Selling Shareholder. At the Closing Time,
the U.S. Representatives shall have received a certificate of an
Attorney-in-Fact on behalf of the Selling Shareholder, dated as of the
Closing Time, to the effect that (i) the representations and warranties
of the Selling Shareholder contained in Section 1(b) hereof are true
and correct in all respects with the same force and effect as though
expressly made at and as of the Closing Time and (ii) the Selling
Shareholder has complied in all material respects with all agreements
and all conditions on its part to be performed under this Agreement at
or prior to the Closing Time.
(g) Accountants' Comfort Letter. At the time of the execution
of this Agreement, the U.S. Representatives shall have received from
PricewaterhouseCoopers LLP a letter dated such date, in form and
substance satisfactory to Merrill Lynch, together with signed or
reproduced copies of such letter for each of the other U.S.
Underwriters containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectuses.
(h) Bring-down Comfort Letter. At the Closing Time, the U.S.
Representatives shall have received from PricewaterhouseCoopers LLP a
letter, dated as of the Closing Time, to the effect that they reaffirm
the statements made in the letter furnished pursuant to subsection (g)
of this Section 5, except that the specified date referred to shall be
a date not more than three (3) business days prior to the Closing Time.
(i) Approval of Listing. At the Closing Time, the Securities
shall have been approved for listing on the New York Stock Exchange.
(j) Purchase of Initial International Securities.
Contemporaneously with the purchase by the U.S. Underwriters of the
Initial U.S. Securities under this Agreement, the
<PAGE> 23
19
International Managers shall have purchased the Initial International
Securities under the International Purchase Agreement.
(k) Conditions to Purchase of U.S. Option Securities. In the
event that the U.S. Underwriters exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the U.S. Option
Securities, the representations and warranties of the Company and the
Selling Shareholder contained herein and the statements in any
certificates furnished by the Company, any subsidiary of the Company or
the Selling Shareholder hereunder shall be true and correct as of each
Date of Delivery and, at the relevant Date of Delivery, the U.S.
Representatives shall have received:
(i) Officers' Certificate. A certificate, dated such
Date of Delivery, of the Company signed by the President or a
Vice President of the Company and by the chief financial or
chief accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section
5(e) hereof remains true and correct as of such Date of
Delivery.
(ii) Certificate of Selling Shareholder. A
certificate, dated such Date of Delivery, of an
Attorney-in-Fact on behalf of the Selling Shareholder
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(f) hereof remains true and correct as of
such Date of Delivery.
(iii) Opinions of Counsel for Company. The favorable
opinions of (A) Patrick B. Dorsey, Senior Vice President,
Secretary and General Counsel of the Company, and (B) Gibson,
Dunn & Crutcher LLP, counsel for the Company, in form and
substance satisfactory to counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the U.S. Option
Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinions required by
Section 5(b) hereof.
(iv) Opinions of Counsel for the Selling Shareholder.
The favorable opinions of (A) Salans Hertzfeld Heilbronn
Christy & Viener, U.S. counsel for the Selling Shareholder,
and (B) , Japanese counsel for the Selling
Shareholder, in form and substance satisfactory to counsel for
the U.S. Underwriters, dated such Date of Delivery, relating
to the U.S. Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinions
required by Section 5(c) hereof.
(v) Opinion of Counsel for U.S. Underwriters. The
favorable opinion of Shearman & Sterling, counsel for the U.S.
Underwriters, dated such Date of Delivery, relating to the
U.S. Option Securities to be purchased on such Date of
<PAGE> 24
20
Delivery and otherwise to the same effect as the opinion
required by Section 5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from
PricewaterhouseCoopers LLP, in form and substance satisfactory
to Merrill Lynch and dated such Date of Delivery,
substantially in the same form and substance as the letter
furnished to the U.S. Representatives pursuant to Section 5(h)
hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more
than five days prior to such Date of Delivery.
(l) Additional Documents. At the Closing Time and at each Date
of Delivery, counsel for the U.S. Underwriters shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the
Company and the Selling Shareholder in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in
form and substance to Merrill Lynch and counsel for the U.S.
Underwriters.
(m) Termination of Agreement. If any condition specified in
this Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of U.S. Option Securities on a Date of Delivery which is after
the Closing Time, the obligations of the several U.S. Underwriters to
purchase the relevant Option Securities, may be terminated by Merrill
Lynch by notice to the Company and the Selling Shareholder at any time
at or prior to the Closing Time or such Date of Delivery, as the case
may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that
Sections 1, 6, 7 and 8 shall survive any such termination and remain in
full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of U.S. Underwriters. The Company agrees to
indemnify and hold harmless each U.S. Underwriter and each person, if any, who
controls any U.S. Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or
<PAGE> 25
21
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectuses (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
U.S. Underwriter through the U.S. Representatives or by the Selling Shareholder
expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus or the U.S. Prospectus (or any amendment or
supplement thereto) and provided further that the Company will not be liable to
any U.S. Underwriter with respect to any preliminary prospectus to the extent
that the Company shall sustain the burden of proving that any such loss,
liability, claim, damage or expense resulted solely from the fact that such U.S.
Underwriter, in contravention of a requirement of this Agreement or applicable
law, sold Securities to a person to whom such U.S. Underwriter failed to send or
give, at or prior to the Closing Date, a copy of the final U.S. Prospectus, as
then amended or supplemented, if: (i) the Company has previously furnished
copies thereof (sufficiently in advance of the Closing Date to allow for
distribution by the Closing Date) to the U.S. Underwriter and the loss,
liability, claim, damage or expense of such U.S. Underwriter resulted from an
untrue statement or omission of a material fact contained in or omitted from the
preliminary prospectus which was corrected in the final U.S. Prospectus as, if
applicable, amended or supplemented prior to the Closing Date and such final
U.S. Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person; and (ii) such failure to give or send such
final U.S. Prospectus by the Closing Date to the party or parties asserting such
loss, liability, claim, damage or expense would have constituted the sole
defense to the claim asserted by such person.
<PAGE> 26
22
The Selling Shareholder agrees to indemnify and hold harmless
each U.S. Underwriter and each person, if any, who controls any U.S. Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
the Company, its directors, its officers who signed the Registration Statement,
and any person who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing
indemnity from the Company to each U.S. Underwriter; provided, however, that
such indemnification shall be only with respect to the information furnished in
writing to the Company by or on behalf of the Selling Shareholder expressly for
use in the Registration Statement (or any amendment thereto), including Rule
430A Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or U.S. Prospectus (or any amendment or supplement thereto); and
provided, further, that the aggregate liability of the Selling Shareholder
pursuant to this paragraph shall be limited to the total net proceeds (before
deducting expenses) received by the Selling Shareholder from the Securities
purchased by the Underwriters from the Selling Shareholder pursuant to this
Agreement and the International Purchase Agreement.
(b) Indemnification of Company, Directors and Officers and Selling
Shareholder. Each U.S. Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the
Selling Shareholder and each person, if any, who controls the Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary U.S. prospectus or the U.S.
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of such U.S. Underwriter through the U.S. Representatives expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary U.S.
prospectus or the U.S. Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel
<PAGE> 27
23
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 45 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement (other than reimbursement for fees and expenses that the indemnifying
party is contesting in good faith).
(e) Other Agreements with Respect to Indemnification. The provisions of
this Section 6 shall not affect any other agreement among the Company and the
Selling Shareholder with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, by the
Selling Shareholder and by the U.S. Underwriters from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, of the Selling Shareholder and
of the U.S. Underwriters in connection with the
<PAGE> 28
24
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, by the Selling
Shareholder and by the U.S. Underwriters in connection with the offering of the
U.S. Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the U.S.
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the Selling Shareholder and the total underwriting discount
received by the U.S. Underwriters, in each case as set forth on the cover of the
U.S. Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet bear to the aggregate initial public offering price of the U.S. Securities
as set forth on such cover.
The relative fault of the Company, of the Selling Shareholder and of
the U.S. Underwriters shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company, by the Selling Shareholder or by the U.S. Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholder and the U.S. Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the U.S. Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (i) no U.S.
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the U.S. Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such U.S. Underwriter has otherwise been required to pay by reason
of any such untrue or alleged untrue statement or omission or alleged omission
and (ii) the Selling Shareholder shall not be required to contribute any amount
in excess of the total net proceeds (before deducting expenses) received by the
Selling Shareholder from the Securities purchased from the Selling Shareholder.
<PAGE> 29
25
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
U.S. Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company or the Selling Shareholder within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company or the Selling Shareholder, as the case may be. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
The provisions of this Section 7 shall not affect any other agreement
between the Company and the Selling Shareholder with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries or the Selling Shareholder submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any U.S. Underwriter or controlling person, or by or on behalf
of the Company or the Selling Shareholder, and shall survive delivery of the
Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. Merrill Lynch may terminate this Agreement,
by notice to the Company and the Selling Shareholder, at any time at or prior to
the Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
U.S. Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis or any
change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of Merrill Lynch,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading
<PAGE> 30
26
have been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one or
more of the U.S. Underwriters shall fail at the Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the U.S. Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting U.S. Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the U.S.
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of U.S. Securities to be purchased on such date, the
non-defaulting U.S. Underwriters shall be obligated, each severally and
not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of U.S. Securities to be purchased on such date, this Agreement
or, with respect to any Date of Delivery which occurs after Closing
Time, the obligation of the U.S. Underwriters to purchase and of the
Company to sell the Option Securities to be purchased and sold on such
Date of Delivery, shall terminate without liability on the part of any
non-defaulting U.S. Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting U.S. Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after Closing
Time, which does not result in a termination of the obligation of the U.S.
Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either (i) the U.S. Representatives or (ii) the
Company and the Selling Shareholder shall have the right to postpone the Closing
Time or the relevant Date of Delivery, as the case may be, for a period not
exceeding seven days in order to
<PAGE> 31
27
effect any required changes in the Registration Statement or Prospectuses or in
any other documents or arrangements. As used herein, the term "U.S. Underwriter"
includes any person substituted for a U.S. Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representatives at North Tower, World
Financial Center, New York, New York 10281, attention of Mary Beth Henson;
notices to the Company shall be directed to it at 727 Fifth Avenue, New York,
New York 10022, attention of Patrick B. Dorsey; and notices to the Selling
Shareholder shall be directed to 12 East 49th Street, New York, New York 10017,
attention of Kazunari Nagamatsu.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the U.S. Underwriters, the Company and the Selling Shareholder
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the U.S. Underwriters, the Company and the Selling
Shareholder and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the U.S. Underwriters, the Company and the Selling
Shareholder and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any U.S. Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
<PAGE> 32
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholder a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the U.S.
Underwriters, the Company and the Selling Shareholder in accordance with its
terms.
Very truly yours,
TIFFANY & CO.
By ________________________________________
Title:
MITSUKOSHI, LTD.
By ________________________________________
As Attorney-in-Fact acting on behalf of
the Selling Shareholder
CONFIRMED AND ACCEPTED, as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ING BARING FURMAN SELZ LLC
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By________________________________
Authorized Signatory
For itself and as U.S. Representatives of the other U.S. Underwriters named in
Schedule A hereto.
<PAGE> 33
Sch A - 1
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Initial U.S.
Name of U.S. Underwriter Securities
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.............................................................
ING Baring Furman Selz LLC.................................................................
---------
Total...................................................................................... 3,104,000
=========
</TABLE>
<PAGE> 34
Sch B - 1
SCHEDULE B
Tiffany & Co.
3,104,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $_____.
2. The purchase price per share for the U.S. Securities to be
paid by the several U.S. Underwriters shall be $_____, being an amount
equal to the initial public offering price set forth above less $___
per share; provided that the purchase price per share for any U.S.
Option Securities purchased upon the exercise of the over-allotment
option described in Section 2(b) shall be reduced by an amount per
share equal to any dividends or distributions declared by the Company
and payable on the Initial U.S.
Securities but not payable on the U.S. Option Securities.
<PAGE> 35
Sch C - 1
SCHEDULE C
[List of subsidiaries]
<PAGE> 36
Exhibit A-1
FORM OF OPINION OF THE COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the U.S.
Purchase Agreement and the International Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in each
jurisdiction listed on Schedule 1 to the opinion, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectuses in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the U.S. Purchase Agreement and the International Purchase Agreement
or pursuant to reservations, agreements or employee benefit plans referred to in
the Prospectuses or pursuant to the exercise of convertible securities or
options referred to in the Prospectuses); the shares of issued and outstanding
capital stock of the Company, including the Securities to be purchased by the
Underwriters from the Selling Shareholder, have been duly authorized and validly
issued and are fully paid and non-assessable; and none of the outstanding shares
of capital stock of the Company was issued in violation of the preemptive or
other similar rights of any securityholder of the Company arising under
applicable law, under the Company's charter or by-laws or under any agreement to
which the Company is a party.
(v) The sale of the Securities by the Selling Shareholder is not
subject to the preemptive or other similar rights of any securityholder of the
Company arising under applicable law, under the Company's charter or by-laws or
under any agreement to which the Company is a party.
(vi) Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in each jurisdiction listed on Schedule 2 to the
opinion, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect;
<PAGE> 37
A-1-2
except as otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of each Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to the best of my
knowledge, is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any Subsidiary was
issued in violation of the preemptive or similar rights of any securityholder of
such Subsidiary.
(vii) To the best of my knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the Company or
any subsidiary is a party, or to which the property of the Company or any
subsidiary is subject, before or brought by any court or governmental agency or
body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in the U.S.
Purchase Agreement and the International Purchase Agreement or the performance
by the Company of its obligations thereunder.
(viii) To the best of my knowledge, neither the Company nor any
Subsidiary is in violation of its charter or by-laws and no default by the
Company or any Subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectuses or filed or incorporated by reference as an exhibit to the
Registration Statement.
(ix) The execution, delivery and performance by the Company of the U.S.
Purchase Agreement and the International Purchase Agreement and the consummation
by the Company of the transactions contemplated in the U.S. Purchase Agreement,
the International Purchase Agreement and in the Registration Statement and
compliance by the Company with its obligations under the U.S. Purchase Agreement
and the International Purchase Agreement do not and will not, whether with or
without the giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined in Section
1(a)(xi) of the Purchase Agreements) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to, any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to me, to which the Company or any subsidiary is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any subsidiary is subject (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any Subsidiary, or (except with
respect to any federal or state securities laws, as to which I express no
opinion) any applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to me, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over
<PAGE> 38
A-1-3
the Company or any Subsidiary or any of their respective properties, assets or
operations, nor will such action cause the preferred share purchase rights
issued pursuant to the Rights Agreement, dated as of November 17, 1988, as
amended, between the Company and Chase Manhattan Bank, successor to
Manufacturers Hanover Trust Company, as Rights Agent, (the "Rights Agreement")
to become exercisable or cause any Underwriter to become an Acquiring Person (as
defined in the Rights Agreement).
(x) The documents incorporated by reference in the Prospectuses (other
than the financial statements and schedules and other financial data included
therein or omitted therefrom, as to which I express no opinion), when they were
filed with the Commission complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent he deems proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
<PAGE> 39
Exhibit A-2
FORM OF OPINION OF GIBSON, DUNN & CRUTCHER LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The U.S. Purchase Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered by the Company.
(ii) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; the Prospectuses have
been transmitted by a means reasonably calculated to result in filing with the
Commission within the time period required by Rule 424(b); and, to the best of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(iii) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434 Information,
as applicable, the Prospectuses, excluding the documents incorporated by
reference therein, and each amendment or supplement to the Registration
Statement and the Prospectuses, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements and schedules and other financial data included therein
or omitted therefrom, as to which we express no opinion) appeared on their face
to be appropriately responsive in all material respects to the requirements of
the 1933 Act and the 1933 Act Regulations.
(iv) The information in the Registration Statement under Item 15, to
the extent that it constitutes matters of law, summaries of legal matters, the
Company's charter and by-laws or legal proceedings, or legal conclusions, has
been reviewed by us and is correct in all material respects.
(v) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectuses that are not described as
required.
(vi) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of our knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(vii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign,
<PAGE> 40
A-2-2
(other than foreign and state securities laws, as to which we express no
opinion, and other than federal securities laws, as to which we express no
opinion in this paragraph) is necessary or required in connection with the due
authorization, execution and delivery of the U.S. Purchase Agreement and the
International Purchase Agreement.
Nothing has come to our attention that leads us to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we need make no statement),
at the time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectuses or any amendment or supplement thereto
(except for financial statements and schedules and other financial data included
or incorporated by reference therein or omitted therefrom, as to which we need
make no statement), at the time the Prospectuses were issued, at the time any
such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
<PAGE> 41
Exhibit B
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDER
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, (other than the issuance of the order of the
Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which we need express no opinion) is necessary or required to be
obtained by the Selling Shareholder for the performance by the Selling
Shareholder of its obligations under the U.S. Purchase Agreement, the
International Purchase Agreement or in the Power of Attorney and Custody
Agreement, or in connection with the offer, sale or delivery of the Securities.
(ii) The Power of Attorney and Custody Agreement has been duly executed
and delivered by the Selling Shareholder and constitutes the legal, valid and
binding agreement of the Selling Shareholder.
(iii) The U.S. Purchase Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered by or on behalf of
the Selling Shareholder.
(iv) The Attorney-in-Fact has been duly authorized by the Selling
Shareholder to deliver the Securities on behalf of the Selling Shareholder in
accordance with the terms of the U.S.
Purchase Agreement and the International Purchase Agreement.
(v) The execution, delivery and performance of the U.S. Purchase
Agreement, the International Purchase Agreement and the Power of Attorney and
Custody Agreement and the sale and delivery of the Securities and the
consummation of the transactions contemplated in the U.S. Purchase Agreement,
the International Purchase Agreement and in the Registration Statement and
compliance by the Selling Shareholder with its obligations under the U.S.
Purchase Agreement and the International Purchase Agreement do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default under or result in the
creation or imposition of any tax, lien, charge or encumbrance upon the
Securities or any property or assets of the Selling Shareholder pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
license, lease or other agreement or instrument to which the Selling Shareholder
is a party or by which it may be bound, or to which any of the property or
assets of the Selling Shareholder is subject (except for such conflicts,
breaches or defaults, or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws or other organizational instruments of the
Selling Shareholder, or any law, administrative regulation, judgment or order of
any governmental agency or body or any administrative or court decree having
jurisdiction over the Selling Shareholder or any of its properties.
<PAGE> 42
B-2
(vi) Upon delivery of the Securities to be sold by the Selling
Shareholder pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement and payment therefor, assuming the Underwriters purchase
without notice of any adverse claim under the Uniform Commercial Code, good and
clear title will pass to the Underwriters, severally, free of all restrictions
on transfer, liens, encumbrances, security interests and claims whatsoever.
<PAGE> 1
Exhibit 1.2
S&S DRAFT
01/06/99
TIFFANY & CO.
(a Delaware corporation)
776,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: , 1999
<PAGE> 2
Table of Contents
<TABLE>
<CAPTION>
INTERNATIONAL PURCHASE AGREEMENT
<S> <C>
SECTION 1. Representations and Warranties................................................4
(a) Representations and Warranties by the Company.................................4
(i) Compliance with Registration Requirements............................4
(ii) Incorporated Documents...............................................5
(iii) Financial Statements.................................................5
(iv) No Material Adverse Change in Business...............................5
(v) Good Standing of the Company.........................................6
(vi) Good Standing of Subsidiaries........................................6
(vii) Capitalization.......................................................6
(viii) Authorization of Agreements..........................................7
(ix) Absence of Defaults and Conflicts....................................7
(x) Absence of Proceedings...............................................7
(b) Representations and Warranties by the Selling Shareholder.....................8
(i) Accurate Disclosure..................................................8
(ii) Authorization of Agreements..........................................8
(iii) Good and Marketable Title............................................9
(iv) Due Execution of Power of Attorney and Custody Agreement.............9
(v) Absence of Manipulation..............................................9
(vi) Absence of Further Requirements.....................................10
(vii) Certificates Suitable for Transfer..................................10
(viii) No Association with NASD............................................10
(c) Officer's Certificates.......................................................10
SECTION 2. Sale and Delivery to International Managers; Closing.........................10
(a) Initial Securities...........................................................10
(b) Option Securities............................................................11
(c) Payment......................................................................11
(d) Denominations; Registration..................................................12
SECTION 3. Covenants of the Company.....................................................12
(a) Compliance with Securities Regulations and Commission Requests...............12
(b) Filing of Amendments.........................................................13
(c) Delivery of Registration Statements..........................................13
(d) Delivery of Prospectuses.....................................................13
(e) Continued Compliance with Securities Laws....................................14
(f) Blue Sky Qualifications......................................................14
(g) Rule 158.....................................................................15
(h) Listing......................................................................15
(i) Restriction on Sale of Securities............................................15
(j) Reporting Requirements.......................................................15
</TABLE>
<PAGE> 3
ii
<TABLE>
<S> <C>
SECTION 4. Payment of Expenses..........................................................15
(a) Expenses of the Company......................................................15
(b) Expenses of the Selling Shareholder..........................................16
(c) Termination of Agreement.....................................................16
(d) Allocation of Expenses.......................................................16
SECTION 5. Conditions of International Managers' Obligations............................16
(a) Effectiveness of Registration Statement......................................16
(b) Opinions of Counsel for Company..............................................17
(c) Opinions of Counsel for the Selling Shareholder..............................17
(d) Opinion of Counsel for International Managers................................17
(e) Officers' Certificate........................................................17
(f) Certificate of Selling Shareholder...........................................18
(g) Accountants' Comfort Letter..................................................18
(h) Bring-down Comfort Letter....................................................18
(i) Approval of Listing..........................................................18
(j) Purchase of Initial U.S. Securities..........................................18
(k) Conditions to Purchase of International Option Securities....................19
(l) Additional Documents.........................................................20
(m) Termination of Agreement.....................................................20
SECTION 6. Indemnification..............................................................20
(a) Indemnification of International Managers....................................20
(b) Indemnification of Company, Directors and Officers and Selling
Shareholder..................................................................22
(c) Actions against Parties; Notification........................................22
(d) Settlement without Consent if Failure to Reimburse...........................23
(e) Other Agreements with Respect to Indemnification.............................23
SECTION 7. Contribution.................................................................23
SECTION 8. Representations, Warranties and Agreements to Survive Delivery...............25
SECTION 9. Termination of Agreement.....................................................25
(a) Termination; General.........................................................25
(b) Liabilities..................................................................26
SECTION 10. Default by One or More of the International Managers.........................26
SECTION 11. Notices......................................................................27
SECTION 12. Parties......................................................................27
SECTION 13. Governing Law and Time.......................................................27
SECTION 14. Effect of Headings...........................................................27
</TABLE>
<PAGE> 4
iii
<TABLE>
<S> <C>
SCHEDULES
Schedule A - List of International Underwriters.......................................Sch A-1
Schedule B - Pricing Information......................................................Sch B-1
Schedule C - List of Subsidiaries.....................................................Sch C-1
EXHIBITS
Exhibit A-1-1 - Form of Opinion of the Company's General Counsel .................... A-1-1
Exhibit A-1-2 - Form of Opinion of Gibson, Dunn & Crutcher LLP ...................... A-2-1
Exhibit B - Form of Opinion of Counsel for the Selling Shareholder .................. B-1
</TABLE>
<PAGE> 5
TIFFANY & CO.
(a Delaware corporation)
776,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
, 1999
MERRILL LYNCH INTERNATIONAL
ING BARINGS
as Lead Managers of the several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Ladies and Gentlemen:
Tiffany & Co., a Delaware corporation (the "Company"), and Mitsukoshi,
Ltd., a Japanese corporation (the "Selling Shareholder"), confirm their
respective agreements with Merrill Lynch International ("Merrill Lynch") and
each of the other international underwriters named in Schedule A hereto
(collectively, the "International Managers", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Merrill Lynch and ING Barings are acting as representatives (in such capacity,
the "Lead Managers"), with respect to (i) the sale by the Selling Shareholder,
and the purchase by the International Managers, acting severally and not
jointly, of 776,000 shares of Common Stock, par value $.01 per share, of the
Company ("Common Stock") and (ii) the grant by the Selling Shareholder to the
International Managers, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 78,000
additional shares of Common Stock to cover over-allotments, if any. The
aforesaid 776,000 shares of Common Stock (the "Initial International
Securities") to be purchased by the International Managers and all or any part
of the 78,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "International Option Securities") are hereinafter called,
collectively, the "International Securities".
It is understood that the Company and the Selling Shareholder are
concurrently entering into an agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for (i) the offering by the Selling Shareholder
of an aggregate of 3,104,000 shares of Common Stock (the
<PAGE> 6
2
"Initial U.S. Securities") through arrangements with certain underwriters in the
United States and Canada (the "U.S. Underwriters") for which Merrill Lynch,
Pierce, Fenner & Smith Incorporated and ING Baring Furman Selz LLC are acting as
representatives (the "U.S. Representatives") and (ii) the grant by the Selling
Shareholder to the U.S. Underwriters, acting severally and not jointly, of an
option to purchase all or any part of the U.S. Underwriters' pro rata portion of
up to 312,000 additional shares of Common Stock solely to cover over-allotments,
if any (the "U.S. Option Securities" and, together with the International Option
Securities, the "Option Securities"). The Initial U.S. Securities and the U.S.
Option Securities are hereinafter called the "U.S. Securities". It is understood
that the Company is not obligated to sell and the International Managers are not
obligated to purchase, any Initial International Securities unless all of the
Initial U.S. Securities are contemporaneously purchased by the U.S.
Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities", and the International Securities and the U.S. Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated (in such capacity, the "Global Coordinator").
The Company and the Selling Shareholder understand that the
International Managers propose to make a public offering of the International
Securities as soon as the Lead Managers deem advisable after this Agreement has
been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333- ) covering
the registration of the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the International Securities (the "Form of
International Prospectus") and one relating to the U.S. Securities (the "Form of
U.S. Prospectus"). The Form of International Prospectus is identical to the Form
of U.S. Prospectus, except for their respective front cover pages, sections
entitled "Underwriting" and back cover pages. The information included in such
prospectus or in such Term Sheet, as the case may be,
<PAGE> 7
3
that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information". Each Form of International Prospectus and
Form of U.S. Prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus". Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement". Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement", and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final Form of International Prospectus and the final
Form of U.S. Prospectus, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the forms first
furnished to the Underwriters for use in connection with the offering of the
Securities are herein called the "International Prospectus" and the "U.S.
Prospectus", respectively, and, collectively, the "Prospectuses". If Rule 434 is
relied on, the terms "International Prospectus" and "U.S. Prospectus" shall
refer to the preliminary International Prospectus dated , 1999 and
preliminary U.S. Prospectus dated , 1999, respectively, each together
with the applicable Term Sheet and all references in this Agreement to the date
of such Prospectuses shall mean the date of the applicable Term Sheet. For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the U.S. Prospectus, the International Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of
International Prospectus and Form of U.S. Prospectus) or the Prospectuses (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of International Prospectus and Form of U.S. Prospectus) or
the Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") which is incorporated by reference in the Registration Statement, such
preliminary prospectus or the Prospectuses, as the case may be.
<PAGE> 8
4
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each International Manager as of the date hereof, as
of the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
International Manager, as follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective, the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither of the Prospectuses nor any
amendments or supplements thereto, at the time the Prospectuses or any
amendments or supplements thereto were issued and at the Closing Time
(and, if any International Option Securities are purchased, at the Date
of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule 434. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
International Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any International
Manager through the Lead Managers or by the Selling Shareholder
expressly for use in the Registration Statement or the International
Prospectus.
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering
was identical to the electronically
<PAGE> 9
5
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectuses, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectuses, at the time
the Registration Statement became effective, at the time the
Prospectuses were issued and at the Closing Time (and, if any
International Option Securities are purchased, at the Date of
Delivery), did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iii) Financial Statements. The financial statements included
in the Registration Statement and the Prospectuses, together with the
related schedules and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, shareholders' equity and cash flows of
the Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial
information included in the Prospectuses present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular quarterly dividends on the
Common Stock in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
<PAGE> 10
6
(v) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform
its obligations under this Agreement; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock
of each such Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are the
subsidiaries listed on Schedule C hereto.
(vii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectuses in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or pursuant to the exercise of convertible securities or
options referred to in the Prospectuses). The shares of issued and
outstanding capital stock of the Company, including the Securities to
be purchased by the Underwriters from the Selling Shareholder, have
been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company, including the Securities to be purchased by the Underwriters
from the Selling Shareholder, was issued in violation of the preemptive
or other similar rights of any securityholder of the Company arising
under applicable law, under the Company's charter or by-laws or under
any agreement to which the Company is a party.
<PAGE> 11
7
(viii) Authorization of Agreements. This Agreement and the
International Purchase Agreement have been duly authorized, executed
and delivered by the Company.
(ix) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company or any subsidiary is subject
(collectively, "Agreements and Instruments") except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement and the U.S. Purchase
Agreement and the consummation of the transactions contemplated in this
Agreement, the U.S. Purchase Agreement and in the Registration
Statement and compliance by the Company with its obligations under this
Agreement and the U.S. Purchase Agreement have been duly authorized by
all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations, nor will such action cause the preferred
share purchase rights issued pursuant to the Rights Agreement, dated as
of November 17, 1988, as amended, between the Company and Chase
Manhattan Bank, successor to Manufacturers Hanover Trust Company, as
Rights Agent, (the "Rights Agreement") to become exercisable or cause
any Underwriter to become an Acquiring Person (as defined in the Rights
Agreement). As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary.
(x) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be
<PAGE> 12
8
expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated in this Agreement and the
U.S. Purchase Agreement or the performance by the Company of its
obligations hereunder or thereunder; the aggregate of all pending legal
or governmental proceedings to which the Company or any subsidiary is a
party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(b) Representations and Warranties by the Selling Shareholder. The
Selling Shareholder represents and warrants to each International Manager as of
the date hereof, as of the Closing Time, and as of each Date of Delivery (if
any) and agrees with each International Manager, as follows:
(i) Accurate Disclosure. To the best knowledge of the Selling
Shareholder, the representations and warranties of the Company
contained in Section 1(a) hereof are true and correct; the Selling
Shareholder has reviewed and is familiar with the Registration
Statement and the Prospectuses and neither of the Prospectuses nor any
amendments or supplements thereto includes any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations
and warranties set forth in this paragraph 2(b)(i) shall only apply to
statements or omissions in the Registration Statement or the
Prospectuses with reference to information relating to such Selling
Shareholder; the Selling Shareholder is not prompted to sell the
Securities to be sold by the Selling Shareholder hereunder by any
information concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectuses.
(ii) Authorization of Agreements. The Selling Shareholder has
the full right, power and authority to enter into this Agreement, the
U.S. Purchase Agreement and a Power of Attorney and Custody Agreement
(the "Power of Attorney and Custody Agreement") and to sell, transfer
and deliver the Securities to be sold by the Selling Shareholder
hereunder and under the U.S. Purchase Agreement. The execution and
delivery of this Agreement, the U.S. Purchase Agreement and the Power
of Attorney and Custody Agreement and the sale and delivery of the
Securities to be sold by the Selling Shareholder and the consummation
of the transactions contemplated herein and therein and compliance by
the Selling Shareholder with its obligations hereunder and thereunder
have been duly authorized by the Selling Shareholder and do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any tax, lien, charge
or encumbrance upon the Securities to be sold by the Selling
Shareholder or any property or assets of the Selling Shareholder
pursuant to any contract, indenture, mortgage, deed of
<PAGE> 13
9
trust, loan or credit agreement, note, license, lease or other
agreement or instrument to which the Selling Shareholder is a party or
by which the Selling Shareholder may be bound, or to which any of the
property or assets of the Selling Shareholder is subject (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or
by-laws or other organizational instrument of the Selling Shareholder,
if applicable, or any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Selling Shareholder or any of its properties.
(iii) Good and Marketable Title. The Selling Shareholder has
and will at the Closing Time and on each Date of Delivery have good and
marketable title to the International Securities to be sold by the
Selling Shareholder hereunder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind, other than pursuant to this Agreement; and upon delivery of such
International Securities and payment of the purchase price therefor as
herein contemplated, assuming each such International Manager has no
notice of any adverse claim, each of the International Managers will
receive good and marketable title to the International Securities
purchased by it from the Selling Shareholder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind.
(iv) Due Execution of Power of Attorney and Custody Agreement.
The Selling Shareholder has duly executed and delivered, in the form
heretofore furnished to the Global Coordinator, the Power of Attorney
and Custody Agreement with___________ as attorney(s)-in-fact (the
"Attorney(s)-in-Fact") and ___________, as custodian (the "Custodian");
the Custodian is authorized by the Selling Shareholder to deliver the
International Securities to be sold by the Selling Shareholder
hereunder and to accept payment therefor; and the Attorney-in-Fact is
authorized to execute and deliver this Agreement and the certificate
referred to in Section 5(f) or that may be required pursuant to
Sections 5(k) and 5(l) on behalf of the Selling Shareholder, to sell,
assign and transfer to the International Managers the International
Securities to be sold by the Selling Shareholder hereunder, to
determine the purchase price to be paid by the International Managers
to the Selling Shareholder, as provided in Section 2(a) hereof, to
authorize the delivery of the International Securities to be sold by
the Selling Shareholder hereunder, to accept payment therefor, and
otherwise to act on behalf of the Selling Shareholder in connection
with this Agreement.
(v) Absence of Manipulation. The Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted
<PAGE> 14
10
or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(vi) Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by the Selling
Shareholder of its obligations hereunder, under the U.S. Purchase
Agreement or in the Power of Attorney and Custody Agreement, or in
connection with the sale and delivery of the Securities hereunder or
under the U.S. Purchase Agreement or the consummation of the
transactions contemplated by this Agreement or the U.S. Purchase
Agreement, except such as may have previously been made or obtained or
as may be required under the 1933 Act or the 1933 Act Regulations or
state securities laws.
(vii) Certificates Suitable for Transfer. Certificates for all
of the Securities to be sold by the Selling Shareholder pursuant to
this Agreement and the U.S. Purchase Agreement, in suitable form for
transfer by delivery or accompanied by duly executed instruments of
transfer or assignment in blank with signatures guaranteed, have been
placed in custody with the Custodian with irrevocable conditional
instructions to deliver such Securities to the Underwriters pursuant to
this Agreement and the U.S. Purchase Agreement.
(viii) No Association with NASD. Neither the Selling
Shareholder nor any of its affiliates directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, or has any other association with (within the
meaning of Article I, Section 1(m) of the By-laws of the National
Association of Securities Dealers, Inc.), any member firm of the
National Association of Securities Dealers, Inc.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Global Coordinator, the
Lead Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby; and any certificate signed by or on behalf of the
Selling Shareholder as such and delivered to the Global Coordinator, the Lead
Managers or to counsel for the International Managers pursuant to the terms of
this Agreement shall be deemed a representation and warranty by the Selling
Shareholder to each International Manager as to the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Selling Shareholder agrees
<PAGE> 15
11
to sell to each International Manager, severally and not jointly, and each
International Manager, severally and not jointly, agrees to purchase from the
Selling Shareholder, at the price per share set forth in Schedule B, the number
of Initial International Securities set forth in Schedule A opposite the name of
such International Manager, plus any additional number of International
Securities which such International Manager may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Shareholder hereby grants an option to the International
Managers, severally and not jointly, to purchase up to an additional 78,000
shares of Common Stock, at the price per share set forth in Schedule B, less an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial International Securities but not payable on the
International Option Securities. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial International Securities upon
notice by the Global Coordinator to the Company and to the Selling Shareholder
setting forth the number of International Option Securities as to which the
several International Managers are then exercising the option and the time and
date of payment and delivery for such International Option Securities. Any such
time and date of delivery for the International Option Securities (a "Date of
Delivery") shall be determined by the Global Coordinator, but shall not be later
than seven (7) full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the International Option Securities, each
of the International Managers, acting severally and not jointly, will purchase
that proportion of the total number of International Option Securities then
being purchased which the number of Initial International Securities set forth
in Schedule A opposite the name of such International Manager bears to the total
number of Initial International Securities, subject in each case to such
adjustments as the Global Coordinator in its discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Shearman & Sterling, 599 Lexington Avenue, New York, New York 10022, or at such
other place as shall be agreed upon by the Global Coordinator, the Company and
the Selling Shareholder, at 9:00 A.M. (Eastern time) on the third (fourth, if
the pricing occurs after 4:30 p.m. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten (10) business days after such
date as shall be agreed upon by the Global Coordinator, the Company and the
Selling Shareholder (such time and date of payment and delivery being herein
called "Closing Time").
<PAGE> 16
12
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator, the Company and the Selling
Shareholder, on each Date of Delivery as specified in the notice from the Global
Coordinator to the Company and the Selling Shareholder.
Payment shall be made to the Selling Shareholder by wire transfer of
immediately available funds to a bank account designated by the Custodian
pursuant to the Selling Shareholder's Power of Attorney and Custody Agreement,
against delivery to the Lead Managers for the respective accounts of the
International Managers of certificates for the International Securities to be
purchased by them. It is understood that each International Manager has
authorized the Lead Managers, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Initial International
Securities and the International Option Securities, if any, which it has agreed
to purchase. Merrill Lynch, individually and not as representative of the
International Managers, may (but shall not be obligated to) make payment of the
purchase price for the Initial International Securities to be purchased by any
International Manager whose funds have not been received by the Closing Time or
the relevant Date of Delivery, as the case may be, but such payment shall not
relieve such International Manager from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities shall be in such denominations and registered in such
names as the Lead Managers may request in writing at least one full business day
before the Closing Time or the relevant Date of Delivery, as the case may be.
The certificates for the Initial International Securities and the International
Option Securities, if any, will be made available for examination and packaging
by the Lead Managers in The City of New York not later than 10:00 A.M. (Eastern
time) on the business day prior to the Closing Time or the relevant Date of
Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify
the Global Coordinator immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectuses or any
amended Prospectuses shall have been filed, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing
or
<PAGE> 17
13
suspending the use of any preliminary prospectus, or of the suspension
of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file
such prospectus. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)),
any Term Sheet or any amendment, supplement or revision to either any
prospectus included in the Registration Statement at the time it became
effective or to the Prospectuses, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Global Coordinator with copies
of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use
any such document to which the Global Coordinator or counsel for the
International Managers shall object.
(c) Delivery of Registration Statements. The Company has
furnished or will deliver to the Lead Managers and counsel for the
International Managers, without charge, signed copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents
and certificates of experts, and will also deliver to the Lead
Managers, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the International Managers. The copies of the
Registration Statement and each amendment thereto furnished to the
International Managers will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to
each International Manager, without charge, as many copies of each
preliminary prospectus as such International Manager reasonably
requested, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to
each International Manager, without charge, during the period when the
International Prospectus is required to be delivered under the 1933 Act
or the 1934 Act, such number of copies of the International Prospectus
(as amended or supplemented) as such International Manager may
reasonably request. The International Prospectus and any
<PAGE> 18
14
amendments or supplements thereto furnished to the International
Managers will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T. The expenses of complying with this
Section 3(d) shall be borne by the Company or by the Selling
Shareholder in the manner contemplated by Section 4 in respect of any
amendment or supplement required during the nine-month period after the
date of this Agreement and by the International Managers thereafter.
(e) Continued Compliance with Securities Laws. The Company
will comply with the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement, the
U.S. Purchase Agreement and in the Prospectuses. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities, any event shall occur or condition shall
exist as a result of which it is necessary, in the opinion of counsel
for the International Managers or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order
that the Prospectuses will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading in the light of the
circumstances existing at the time any such Prospectus is delivered to
a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend
or supplement any Prospectus in order to comply with the requirements
of the 1933 Act or the 1933 Act Regulations, the Company will promptly
prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectuses
comply with such requirements, and the Company will furnish to the
International Managers such number of copies of such amendment or
supplement as the International Managers may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the International Managers, to qualify the
Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions as the Global Coordinator may
designate and to maintain such qualifications in effect for a period of
not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less
<PAGE> 19
15
than one year from the effective date of the Registration Statement and
any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally
available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated
by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Listing. The Company will use its best efforts to effect
the listing of the Securities on the New York Stock Exchange.
(i) Restriction on Sale of Securities. During a period of 90
days from the date of the Prospectus, the Company will not, without the
prior written consent of the Global Coordinator, (i) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase or otherwise transfer or
dispose of any share of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Prospectus, (B)
any shares of Common Stock issued or options to purchase Common Stock
granted pursuant to existing employee benefit plans of the Company
referred to in the Prospectus or (C) any shares of Common Stock issued
pursuant to any non-employee director stock plan or dividend
reinvestment plan.
(j) Reporting Requirements. The Company, during the period
when the Prospectuses are required to be delivered under the 1933 Act
or the 1934 Act, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by
the 1934 Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses of the Company. The
Company will pay or cause to be paid all expenses incident to the performance of
its obligations under this Agreement, including (i) the preparation and filing
of the Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, issuance
and delivery of the certificates for the Securities to the Underwriters, (iii)
the fees and disbursements of the Company's counsel, accountants and other
advisors, (iv) the
<PAGE> 20
16
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (v) the preparation and delivery to the Underwriters of copies of the
Blue Sky Survey and any supplement thereto, (vi) the fees and expenses of any
transfer agent or registrar for the Securities, and (vii) the fees and expenses
incurred in connection with the listing of the Securities on the New York Stock
Exchange.
(b) Expenses of the Selling Shareholder. The Selling Shareholder will
pay all expenses incident to the performance of its obligations under, and the
consummation of the transactions contemplated by this Agreement, including (i)
any stamp duties, capital duties and stock transfer taxes, if any, payable upon
the sale of the Securities to the Underwriters, and their transfer between the
Underwriters pursuant to an agreement between such Underwriters, (ii) the fees
and disbursements of its counsel and accountants and (iii) the costs of printing
the Registration Statement, each preliminary prospectus, any Term Sheets and the
Prospectuses and any amendments or supplements thereto.
(c) Termination of Agreement. If this Agreement is terminated by the
Lead Manager in accordance with the provisions of Section 5, Section 9(a)(i) or
Section 11 hereof, the Selling Shareholder shall reimburse the International
Managers for all of their out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the International Managers.
(d) Allocation of Expenses. The provisions of this Section 4 shall not
affect any agreement that the Company and the Selling Shareholder may have made
or may hereinafter make for the sharing of such costs and expenses.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Shareholder contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company or on behalf of the Selling
Shareholder delivered pursuant to the provisions hereof, to the performance by
the Company and the Selling Shareholder of their respective covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the International Managers and to the
Selling Shareholder. A prospectus containing the Rule 430A
<PAGE> 21
17
Information shall have been filed with the Commission in accordance
with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance
with the requirements of Rule 430A) or, if the Company has elected to
rely upon Rule 434, a Term Sheet shall have been filed with the
Commission in accordance with Rule 424(b).
(b) Opinions of Counsel for Company. At Closing Time, the Lead
Managers shall have received the favorable opinions, dated as of
Closing Time, of (i) Patrick B. Dorsey, Senior Vice President,
Secretary and General Counsel of the Company, and (ii) Gibson, Dunn &
Crutcher LLP, counsel for the Company, in form and substance
satisfactory to counsel for the International Managers, together with
signed or reproduced copies of such letter for each of the other
International Managers to the effect set forth in Exhibit A-1 and
Exhibit A-2, respectively, hereto and to such further effect as counsel
to the International Managers may reasonably request.
(c) Opinions of Counsel for the Selling Shareholder. At the
Closing Time, the Lead Managers shall have received the favorable
opinions, dated as of the Closing Time, of (i) Salans Hertzfeld
Heilbronn Christy & Viener, U.S. counsel for the Selling Shareholder,
and (ii) , Japanese counsel for the Selling Shareholder, in
form and substance satisfactory to counsel for the International
Managers, together with signed or reproduced copies of such letter for
each of the other International Managers to the effect set forth in
Exhibit B-1 and Exhibit B-2, respectively, hereto and to such further
effect as counsel to the International Managers may reasonably request.
(d) Opinion of Counsel for International Managers. At the
Closing Time, the Lead Managers shall have received the favorable
opinion, dated as of the Closing Time, of Shearman & Sterling, counsel
for the International Managers, together with signed or reproduced
copies of such letter for each of the other International Managers with
respect to the matters set forth in clauses and the
penultimate paragraph of Exhibit A-2 hereto. In giving such opinion
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the
federal law of the United States, upon the opinions of counsel
satisfactory to Merrill Lynch. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to
the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries and certificates of public officials.
(e) Officers' Certificate. At the Closing Time, there shall
not have been, since the date hereof or since the respective dates as
of which information is given in the Prospectuses, any material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and
<PAGE> 22
18
the Lead Managers shall have received a certificate of the Company
signed by the President or a Vice President of the Company and by the
chief financial or chief accounting officer of the Company, dated as of
the Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect
as though expressly made at and as of the Closing Time, (iii) the
Company has complied in all material respects with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the knowledge
of the officers signing the certificate, are pending or are
contemplated by the Commission.
(f) Certificate of Selling Shareholder. At the Closing Time,
the Lead Managers shall have received a certificate of an
Attorney-in-Fact on behalf of the Selling Shareholder, dated as of the
Closing Time, to the effect that (i) the representations and warranties
of the Selling Shareholder contained in Section 1(b) hereof are true
and correct in all respects with the same force and effect as though
expressly made at and as of the Closing Time and (ii) the Selling
Shareholder has complied in all material respects with all agreements
and all conditions on its part to be performed under this Agreement at
or prior to the Closing Time.
(g) Accountants' Comfort Letter. At the time of the execution
of this Agreement, the Lead Managers shall have received from
PricewaterhouseCoopers LLP a letter dated such date, in form and
substance satisfactory to Merrill Lynch, together with signed or
reproduced copies of such letter for each of the other International
Managers containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect
to the financial statements and certain financial information contained
in the Registration Statement and the Prospectuses.
(h) Bring-down Comfort Letter. At the Closing Time, the Lead
Managers shall have received from PricewaterhouseCoopers LLP a letter,
dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (g) of
this Section 5, except that the specified date referred to shall be a
date not more than three (3) business days prior to the Closing Time.
(i) Approval of Listing. At the Closing Time, the Securities
shall have been approved for listing on the New York Stock Exchange.
(j) Purchase of Initial U.S. Securities. Contemporaneously
with the purchase by the International Managers of the Initial
International Securities under this Agreement,
<PAGE> 23
19
the U.S. Underwriters shall have purchased the Initial U.S.
Securities under the U.S. Purchase Agreement.
(k) Conditions to Purchase of International Option Securities.
In the event that the International Managers exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
International Option Securities, the representations and warranties of
the Company and the Selling Shareholder contained herein and the
statements in any certificates furnished by the Company, any subsidiary
of the Company or the Selling Shareholder hereunder shall be true and
correct as of each Date of Delivery and, at the relevant Date of
Delivery, the Lead Managers shall have received:
(i) Officers' Certificate. A certificate, dated such
Date of Delivery, of the Company signed by the President or a
Vice President of the Company and by the chief financial or
chief accounting officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section
5(e) hereof remains true and correct as of such Date of
Delivery.
(ii) Certificate of Selling Shareholder. A
certificate, dated such Date of Delivery, of an
Attorney-in-Fact on behalf of the Selling Shareholder
confirming that the certificate delivered at the Closing Time
pursuant to Section 5(f) hereof remains true and correct as of
such Date of Delivery.
(iii) Opinions of Counsel for Company. The favorable
opinions of (A) Patrick B. Dorsey, Senior Vice President,
Secretary and General Counsel of the Company, and (B) Gibson,
Dunn & Crutcher LLP, counsel for the Company, in form and
substance satisfactory to counsel for the International
Managers, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date
of Delivery and otherwise to the same effect as the opinions
required by Section 5(b) hereof.
(iv) Opinions of Counsel for the Selling Shareholder.
The favorable opinions of (A) Salans Hertzfeld Heilbronn
Christy & Viener, U.S. counsel for the Selling Shareholder,
and (B) , Japanese counsel for the Selling
Shareholder, in form and substance satisfactory to counsel for
the International Managers, dated such Date of Delivery,
relating to the International Option Securities to be
purchased on such Date of Delivery and otherwise to the same
effect as the opinions required by Section 5(c) hereof.
(v) Opinion of Counsel for International Managers.
The favorable opinion of Shearman & Sterling, counsel for the
International Managers, dated such Date of Delivery, relating
to the International Option Securities to be
<PAGE> 24
20
purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(d) hereof.
(vi) Bring-down Comfort Letter. A letter from
PricewaterhouseCoopers LLP, in form and substance satisfactory
to Merrill Lynch and dated such Date of Delivery,
substantially in the same form and substance as the letter
furnished to the Lead Managers pursuant to Section 5(h)
hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more
than five days prior to such Date of Delivery.
(l) Additional Documents. At the Closing Time and at each Date
of Delivery, counsel for the International Managers shall have been
furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the
Company and the Selling Shareholder in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in
form and substance to Merrill Lynch and counsel for the International
Managers.
(m) Termination of Agreement. If any condition specified in
this Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the
purchase of International Option Securities on a Date of Delivery which
is after the Closing Time, the obligations of the several International
Managers to purchase the relevant Option Securities, may be terminated
by Merrill Lynch by notice to the Company and the Selling Shareholder
at any time at or prior to the Closing Time or such Date of Delivery,
as the case may be, and such termination shall be without liability of
any party to any other party except as provided in Section 4 and except
that Sections 1, 6, 7 and 8 shall survive any such termination and
remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of International Managers. The Company agrees to
indemnify and hold harmless each International Manager and each person, if any,
who controls any International Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or
<PAGE> 25
21
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the
Prospectuses (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company;
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Merrill
Lynch), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager through the Lead Managers or by the Selling Shareholder
expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus or the International Prospectus (or any amendment
or supplement thereto) and provided further that the Company will not be liable
to any International Manager with respect to any preliminary prospectus to the
extent that the Company shall sustain the burden of proving that any such loss,
liability, claim, damage or expense resulted solely from the fact that such
International Manager, in contravention of a requirement of this Agreement or
applicable law, sold Securities to a person to whom such International Manager
failed to send or give, at or prior to the Closing Date, a copy of the final
International Prospectus, as then amended or supplemented, if: (i) the Company
has previously furnished copies thereof (sufficiently in advance of the Closing
Date to allow for distribution by the Closing Date) to the International Manager
and the loss, liability, claim, damage or expense of such International Manager
resulted from an untrue statement or omission of a material fact contained in or
omitted from the preliminary prospectus which was corrected in the final
International Prospectus as, if applicable, amended or supplemented prior to the
Closing Date and such final International Prospectus was required by law to be
delivered at or prior to the written confirmation of sale to such person; and
(ii) such failure to give or send
<PAGE> 26
22
such final International Prospectus by the Closing Date to the party or parties
asserting such loss, liability, claim, damage or expense would have constituted
the sole defense to the claim asserted by such person.
The Selling Shareholder agrees to indemnify and hold harmless
each International Manager and each person, if any, who controls any
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, the Company, its directors, its officers who signed
the Registration Statement, and any person who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same
extent as the foregoing indemnity from the Company to each International
Manager; provided, however, that such indemnification shall be only with respect
to the information furnished in writing to the Company by or on behalf of the
Selling Shareholder expressly for use in the Registration Statement (or any
amendment thereto), including Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or International
Prospectus (or any amendment or supplement thereto); and provided further that
the aggregate liability of the Selling Shareholder pursuant to this paragraph
shall be limited to the total net proceeds (before deducting expenses) received
by the Selling Shareholder from the Securities purchased by the Underwriters
from the Selling Shareholder pursuant to this Agreement and the U.S. Purchase
Agreement.
(b) Indemnification of Company, Directors and Officers and Selling
Shareholder. Each International Manager severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the
Selling Shareholder and each person, if any, who controls the Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary international prospectus or the
International Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of such International Manager through the Lead Managers expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary international prospectus or the International Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties
<PAGE> 27
23
indemnified pursuant to Section 6(a) above, counsel to the indemnified parties
shall be selected by Merrill Lynch, and, in the case of parties indemnified
pursuant to Section 6(b) above, counsel to the indemnified parties shall be
selected by the Company. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 45 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement (other than reimbursement for fees and expenses that the indemnifying
party is contesting in good faith).
(e) Other Agreements with Respect to Indemnification. The provisions of
this Section 6 shall not affect any other agreement among the Company and the
Selling Shareholder with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, by the
Selling Shareholder and by the International Managers from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation
<PAGE> 28
24
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, of the Selling Shareholder
and of the International Managers in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company, by the Selling
Shareholder and by the International Managers in connection with the offering of
the International Securities pursuant to this Agreement shall be deemed to be in
the same respective proportions as the total net proceeds from the offering of
the International Securities pursuant to this Agreement (before deducting
expenses) received by the Company and the Selling Shareholder and the total
underwriting discount received by the International Managers, in each case as
set forth on the cover of the International Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet bear to the aggregate initial
public offering price of the International Securities as set forth on such
cover.
The relative fault of the Company, of the Selling Shareholder and of
the International Managers shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company, by the Selling Shareholder or by the International
Managers and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Selling Shareholder and the International Managers
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the International
Managers were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (i) no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Manager has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission and (ii) the Selling Shareholder shall not be required to contribute
any amount in excess of the
<PAGE> 29
25
total net proceeds (before deducting expenses) received by the Selling
Shareholder from the Securities purchased from the Selling Shareholder.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company or the Selling Shareholder within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company or the Selling Shareholder, as the case may be. The
International Managers' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
The provisions of this Section 7 shall not affect any other agreement
between the Company and the Selling Shareholder with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries or the Selling Shareholder submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any International Manager or controlling person, or by or on
behalf of the Company or the Selling Shareholder, and shall survive delivery of
the Securities to the International Managers.
SECTION 9. Termination of Agreement.
(a) Termination; General. Merrill Lynch may terminate this Agreement,
by notice to the Company and the Selling Shareholder, at any time at or prior to
the Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
International Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation thereof or other calamity or
crisis or any change or development involving a prospective change in national
or international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the
<PAGE> 30
26
judgment of Merrill Lynch, impracticable to market the Securities or to enforce
contracts for the sale of the Securities, or (iii) if trading in any securities
of the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section 9, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the International Managers. If
one or more of the International Managers shall fail at the Closing Time or a
Date of Delivery to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Lead Managers
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting International Managers, or any other underwriters,
to purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if, however,
the Lead Managers shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the number of International Securities to be purchased on such date,
the non-defaulting International Managers shall be obligated, each
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of International Securities to be purchased on such date, this
Agreement or, with respect to any Date of Delivery which occurs after
Closing Time, the obligation of the International Managers to purchase
and of the Company to sell the Option Securities to be purchased and
sold on such Date of Delivery, shall terminate without liability on the
part of any non-defaulting International Manager.
No action taken pursuant to this Section 10 shall relieve any
defaulting International Manager from liability in respect of its default.
<PAGE> 31
27
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after Closing
Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either (i) the Lead
Managers or (ii) the Company and the Selling Shareholder shall have the right to
postpone the Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectuses or in any other documents or
arrangements. As used herein, the term "International Manager" includes any
person substituted for an International Manager under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers at Ropemaker
Place, 25 Ropemaker Street, London EC2Y 9LY, England, attention of ;
notices to the Company shall be directed to it at 727 Fifth Avenue, New York,
New York 10022, attention of Patrick B. Dorsey; and notices to the Selling
Shareholder shall be directed to 12 East 49th Street, New York, New York 10017,
attention of Kazunari Nagamatsu.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the International Managers, the Company and the Selling
Shareholder and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the International Managers, the Company and the Selling
Shareholder and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the International Managers, the Company and the Selling
Shareholder and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any International Manager shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
<PAGE> 32
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholder a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the International
Managers, the Company and the Selling Shareholder in accordance with its terms.
Very truly yours,
TIFFANY & CO.
By _____________________________________
Title:
MITSUKOSHI, LTD.
By _____________________________________
As Attorney-in-Fact acting on behalf
of the Selling Shareholder
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH INTERNATIONAL
ING BARINGS
By: MERRILL LYNCH INTERNATIONAL
By _____________________________
Authorized Signatory
For itself and as Lead Managers of the other International Managers named in
Schedule A hereto.
<PAGE> 33
Sch A - 1
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Initial
International
Name of International Managers Securities
------------------------------ -------------
<S> <C>
Merrill Lynch International...............................
ING Barings...............................................
-------
Total..................................................... 776,000
=======
</TABLE>
<PAGE> 34
Sch B - 1
SCHEDULE B
Tiffany & Co.
776,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $_____.
2. The purchase price per share for the International
Securities to be paid by the several International Managers shall be
$_____, being an amount equal to the initial public offering price set
forth above less $___ per share; provided that the purchase price per
share for any International Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall
be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial
International Securities but not payable on the International Option
Securities.
<PAGE> 35
Sch C - 1
SCHEDULE C
[List of subsidiaries]
<PAGE> 36
A-1-1
Exhibit A-1
FORM OF OPINION OF THE COMPANY'S GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the
International Purchase Agreement and the U.S. Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in each
jurisdiction listed on Schedule 1 to the opinion, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectuses in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the International Purchase Agreement and the U.S. Purchase Agreement
or pursuant to reservations, agreements or employee benefit plans referred to in
the Prospectuses or pursuant to the exercise of convertible securities or
options referred to in the Prospectuses); the shares of issued and outstanding
capital stock of the Company, including the Securities to be purchased by the
Underwriters from the Selling Shareholder, have been duly authorized and validly
issued and are fully paid and non-assessable; and none of the outstanding shares
of capital stock of the Company was issued in violation of the preemptive or
other similar rights of any securityholder of the Company arising under
applicable law, under the Company's charter or by-laws or under any agreement to
which the Company is a party.
(v) The sale of the Securities by the Selling Shareholder is not
subject to the preemptive or other similar rights of any securityholder of the
Company arising under applicable law, under the Company's charter or by-laws or
under any agreement to which the Company is a party.
(vi) Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in each jurisdiction listed on Schedule 2 to the
opinion, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect;
<PAGE> 37
A-1-2
except as otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of each Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to the best of my
knowledge, is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any Subsidiary was
issued in violation of the preemptive or similar rights of any securityholder of
such Subsidiary.
(vii) To the best of my knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation, to which the Company or
any subsidiary is a party, or to which the property of the Company or any
subsidiary is subject, before or brought by any court or governmental agency or
body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in the
International Purchase Agreement and the U.S. Purchase Agreement or the
performance by the Company of its obligations thereunder.
(viii) To the best of my knowledge, neither the Company nor any
Subsidiary is in violation of its charter or by-laws and no default by the
Company or any Subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectuses or filed or incorporated by reference as an exhibit to the
Registration Statement.
(ix) The execution, delivery and performance by the Company of the
International Purchase Agreement and the U.S. Purchase Agreement and the
consummation by the Company of the transactions contemplated in the
International Purchase Agreement, the U.S. Purchase Agreement and in the
Registration Statement and compliance by the Company with its obligations under
the International Purchase Agreement and the U.S. Purchase Agreement do not and
will not, whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 1(a)(xi) of the Purchase Agreements) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to me, to which the Company or any subsidiary is
a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any Subsidiary, or
(except with respect to any Federal or state securities laws, as to which I
express no opinion) any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to me, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
<PAGE> 38
A-1-3
the Company or any Subsidiary or any of their respective properties, assets or
operations, nor will such action cause the preferred share purchase rights
issued pursuant to the Rights Agreement, dated as of November 17, 1988, as
amended, between the Company and Chase Manhattan Bank, successor to
Manufacturers Hanover Trust Company, as Rights Agent, (the "Rights Agreement")
to become exercisable or cause any Underwriter to become an Acquiring Person (as
defined in the Rights Agreement).
(x) The documents incorporated by reference in the Prospectuses (other
than the financial statements and schedules and other financial data included
therein or omitted therefrom, as to which I express no opinion), when they were
filed with the Commission complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent he deems proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
<PAGE> 39
A-2-1
Exhibit A-2
FORM OF OPINION OF GIBSON, DUNN & CRUTCHER LLP
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The International Purchase Agreement and the U.S. Purchase
Agreement have been duly authorized, executed and delivered by the Company.
(ii) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; the Prospectuses have
been transmitted by a means reasonably calculated to result in filing with the
Commission within the time period required by Rule 424(b); and, to the best of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(iii) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434 Information,
as applicable, the Prospectuses, excluding the documents incorporated by
reference therein, and each amendment or supplement to the Registration
Statement and the Prospectuses, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements and schedules and other financial data included therein
or omitted therefrom, as to which we express no opinion) appeared on their face
to be appropriately responsive in all material respects to the requirements of
the 1933 Act and the 1933 Act Regulations.
(iv) The information in the Registration Statement under Item 15, to
the extent that it constitutes matters of law, summaries of legal matters, the
Company's charter and by-laws or legal proceedings, or legal conclusions, has
been reviewed by us and is correct in all material respects.
(v) To the best of our knowledge, there are no statutes or regulations
that are required to be described in the Prospectuses that are not described as
required.
(vi) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of our knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(vii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign,
<PAGE> 40
A-2-2
(other than foreign and state securities laws, as to which we express no
opinion, and other than federal securities laws, as to which we express no
opinion in this paragraph) is necessary or required in connection with the due
authorization, execution and delivery of the International Purchase Agreement
and the U.S. Purchase Agreement or for the offering, issuance, sale or delivery
of the Securities.
Nothing has come to our attention that leads us to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we need make no statement),
at the time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectuses or any amendment or supplement thereto
(except for financial statements and schedules and other financial data included
or incorporated by reference therein or omitted therefrom, as to which we need
make no statement), at the time the Prospectuses were issued, at the time any
such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
<PAGE> 41
B-1
Exhibit B
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDER
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, (other than the issuance of the order of the
Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which we need express no opinion) is necessary or required to be
obtained by the Selling Shareholder for the performance by the Selling
Shareholder of its obligations under the International Purchase Agreement, the
U.S. Purchase Agreement or in the Power of Attorney and Custody Agreement, or in
connection with the offer, sale or delivery of the Securities.
(ii) The Power of Attorney and Custody Agreement has been duly executed
and delivered by the Selling Shareholder and constitutes the legal, valid and
binding agreement of the Selling Shareholder.
(iii) The International Purchase Agreement and the U.S. Purchase
Agreement have been duly authorized, executed and delivered by or on behalf of
the Selling Shareholder.
(iv) The Attorney-in-Fact has been duly authorized by the Selling
Shareholder to deliver the Securities on behalf of the Selling Shareholder in
accordance with the terms of the International Purchase Agreement and the U.S.
Purchase Agreement.
(v) The execution, delivery and performance of the International
Purchase Agreement, the U.S. Purchase Agreement and the Power of Attorney and
Custody Agreement and the sale and delivery of the Securities and the
consummation of the transactions contemplated in the International Purchase
Agreement, the U.S. Purchase Agreement and in the Registration Statement and
compliance by the Selling Shareholder with its obligations under the
International Purchase Agreement and the U.S. Purchase Agreement do not and will
not, whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default under or result in the
creation or imposition of any tax, lien, charge or encumbrance upon the
Securities or any property or assets of the Selling Shareholder pursuant to, any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
license, lease or other agreement or instrument to which the Selling Shareholder
is a party or by which it may be bound, or to which any of the property or
assets of the Selling Shareholder is subject (except for such conflicts,
breaches or defaults, or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws or other organizational instruments of the
Selling Shareholder, or any law, administrative regulation, judgment or order of
any governmental agency or body or any administrative or court decree having
jurisdiction over the Selling Shareholder or any of its properties.
<PAGE> 42
B-2
(vi) Upon delivery of the Securities to be sold by the Selling
Shareholder pursuant to the International Purchase Agreement and the U.S.
Purchase Agreement and payment therefor, assuming the Underwriters purchase
without notice of any adverse claim under the Uniform Commercial Code, good and
clear title will pass to the Underwriters, severally, free of all restrictions
on transfer, liens, encumbrances, security interests and claims whatsoever.
<PAGE> 1
Exhibit 5.1
[Letterhead of Gibson, Dunn & Crutcher LLP]
January 7, 1999
(212) 351-4000 91172-00046
Tiffany & Co.
727 Fifth Avenue
New York, New York 10022
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 (the "Registration
Statement") of Tiffany & Co., a Delaware corporation (the "Company"), filed
today with the Securities and Exchange Commission (the "Commission") pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), in connection
with the public offering of up to 4,270,000 issued and outstanding shares (the
"Shares") of the Company's Common Stock, par value $.01 per share (the "Common
Stock"), by Mitsukoshi, Ltd.
For the purposes of the opinion set forth below, we have examined and are
familiar with the proceedings taken and proposed to be taken by the Company in
connection with the authorization and issuance of the Shares, including, among
other things, such corporate records of the Company and certificates of officers
of the Company and of public officials and such other documents as we have
deemed relevant and necessary as the basis for the opinion set forth below. In
such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
the originals of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies.
Based upon the foregoing examination and in reliance thereon, and subject
to the assumptions stated and relying on statements of fact contained in the
documents that we have examined, we are of the opinion that the Shares are
validly issued, fully paid and non-assessable.
We render no opinion herein as to matters involving the laws of any
jurisdiction other than the laws of the United States of America and the General
Corporation Law of the State of Delaware. In rendering this opinion, we assume
no obligation to revise or supplement this opinion should current laws, or the
interpretations thereof, be changed.
We consent to the filing of this opinion as an exhibit to the Registration
Statement, and we further consent to the use of our name under the caption
"Legal Matters" in the Registration Statement and the prospectus which forms a
part thereof. In giving these consents, we do not thereby admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
/s/ GIBSON, DUNN & CRUTCHER LLP
-------------------------------
<PAGE> 1
EXHIBIT 23.2
[PRICEWATERHOUSECOOPERS LOGO]
- -------------------------------------------------------------------------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Tiffany & Co. (the "Company") on Form S-3 of our report, dated March 3, 1998, on
our audits of the consolidated financial statements and financial statement
schedule of the Company as of January 31, 1998 and 1997 and for each of the
three years in the period ended January 31, 1998, which report is incorporated
by reference in the Company's Annual Report on Form 10-K. We also consent to the
reference to our firm under the caption "Experts."
PricewaterhouseCoopers LLP
/s/
New York, New York
January 6, 1999
