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Exhibit 10.125
Xxxxxxx & Co.
Report on Form 10-K
Fiscal Year 1997
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made and entered into as of
the 2nd day of February 1998 between XXXXXXX AND COMPANY, a New York corporation
with its executive offices and principal place of business at 000 Xxxxx Xxxxxx,
Xxx Xxxx, XX 00000 (hereinafter referred to as "TIFFANY") and MITSUKOSHI
(U.S.A.), INC., a corporation organized and existing under the laws of the State
of New York, with its executive offices at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx Xxxx,
X.X., 10017, the successor by merger to the Hawaii corporation of the same name
(hereinafter referred to as "MITSUKOSHI").
W I T N E S S E T H:
WHEREAS, Tiffany desires to acquire from Mitsukoshi, and Mitsukoshi
desires to sell and transfer to Tiffany, certain of Mitsukoshi's assets and
properties used solely in the operation of a XXXXXXX & CO. retail boutique
located in Moana Shops Nos. 3 & 4 (including associated non-retail space in
Diamond Head Wing Room No. 3223), at the Sheraton Moana Surfrider Hotel on
Waikiki Beach on the Island of Oahu, State of Hawaii (the "PREMISES"), and the
goodwill and going-concern value associated therewith (collectively the
"BUSINESS"), upon the terms and conditions herein set forth.
WHEREAS, Mitsukoshi and Tiffany each acknowledge and agree that the letter
agreement concerning access and confidentiality entered into between them and
dated September 25, 1997 remains valid and states the binding obligations of the
parties.
WHEREAS, contemporaneous with the transactions evidenced hereby,
Mitsukoshi has surrendered its lease for the Premises and Tiffany has entered
into a new lease for the Premises.
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties agree as follows:
SECTION 1. Transactions on Closing
IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, THE PARTIES HEREBY
CONSUMMATE, ON THE CLOSING DATE (AS DEFINED IN SECTION 2.1 BELOW), THE FOLLOWING
TRANSACTIONS:
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1.1 Sale and Purchase of Assets. Subject to the terms and conditions set forth
in this Agreement and on the basis of and in reliance upon the representations,
warranties, obligations and agreements set forth in this Agreement, Mitsukoshi
hereby sells, assigns, transfers, conveys and delivers to Xxxxxxx and Xxxxxxx
hereby purchases, acquires and accepts the assets owned by Mitsukoshi as of the
Closing Date and used solely in connection with the Business, except for the
Excluded Assets (as described in SCHEDULE 1.1 attached), (the assets conveyed
hereunder hereinafter shall collectively be referred to as the "ASSETS"), free
and clear of all liens, charges and encumbrances except for "Permitted
Exceptions" (as described in SCHEDULE 3.8(a) attached) as shall exist on the
Closing Date. The Assets include the following assets:
(a) All Mitsukoshi's leasehold improvements, furniture, tools, workbenches,
lighting equipment, samples, furnishings, office equipment, computers
(excluding point of sale transaction processing equipment), and telephone
systems used in the operation of the Business and kept, in the ordinary
course of the Business, at the Premises, including but not limited to the
equipment listed in SCHEDULE 1.1(a) attached hereto and any claim to
insurance proceeds in respect of the foregoing items;
(b) All Mitsukoshi's rights, claims and interests to and with respect to
pending or executory contracts entered into in the ordinary course of the
Business including, without limitation, orders placed by customers for
merchandise, contracts to sell and deliver merchandise, service contracts
for equipment, equipment leases, distribution agreements, trade
association memberships, advertising agreements, licenses, permits and
other documents or agreements to which Mitsukoshi is a party or by which
it has rights, in each case to the extent they are assignable to Tiffany;
(c) The following records, files and papers, if any, in each case relating to
the Assets or the Business, wherever located: customer lists, sales and
delivery records, catalogs, quotations for the sale of products,
maintenance and warranty records with respect to equipment, promotional
and advertising materials;
(d) All Mitsukoshi's inventories, materials and supplies related to the
Business including, without limitation, packaging materials for the
Business;
(e) All Mitsukoshi's prepaid expenses related to the Business and that were
paid by Mitsukoshi in connection with any of the "Assumed Liabilities" (as
defined in Section 1.2 below);
(f) All Mitsukoshi's rights under or pursuant to all warranties,
representations and guarantees made by suppliers in connection with
products or services furnished to Mitsukoshi for the Business or affecting
the Assets to the extent such warranties and guarantees are transferable;
(g) All of Mitsukoshi's interest in the trade names and trademarks TIFFANY and
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XXXXXXX & CO., any variations of such names and any goodwill associated
with any of the foregoing; and
(h) The Business as a going concern and all intangible property and rights of
Xxxxxxxxxx xxxxxxx, including goodwill.
1.2 Limited Assumption of Liabilities. Except for the liabilities and
obligations set forth in SCHEDULE 1.2 attached, to the extent that such
liabilities and obligations may exist on the Closing Date (the "ASSUMED
LIABILITIES") which Tiffany hereby assumes, agrees to pay, perform and discharge
in due course, or liabilities or obligations otherwise expressly stated to be
assumed by Tiffany in this Agreement or in any Exhibit or Schedule hereto, it is
understood and agreed that Tiffany does not assume and will not be responsible
to pay any debts, liabilities, obligations, contracts, leases, commitments and
other undertakings of Mitsukoshi as each of the foregoing exists on the Closing
Date or, except as otherwise specifically provided for in this Agreement or any
Exhibit or Schedule hereto, by reason of Mitsukoshi's acts or omissions prior
to, on or after the Closing Date, including, but not limited to, liabilities of
the following types, all of which shall remain the liability and responsibility
of Mitsukoshi: (i) liabilities arising out of the relationship between
Mitsukoshi and its employees, including, but not limited to, liabilities for
payroll, payroll withholding taxes, unfunded pension liabilities, liabilities
under health and welfare plans, and employment termination liabilities; (ii)
taxes payable by Mitsukoshi (other than Hawaii's General Excise Tax on the
transactions contemplated herein which shall be reimbursed by Tiffany to
Mitsukoshi as provided in Section 8 below); (iii) tort liabilities; (iv)
criminal claims; (v) claims arising out of actual or alleged pollution of the
environment; (vi) pending litigation, whether disclosed or undisclosed; (vii)
any undisclosed liabilities; and (viii) any debts owed by Mitsukoshi.
1.3 Purchase Price and Payment.
(a) The price payable for the Assets acquired pursuant to Section 1.1 hereof
shall be EIGHT MILLION ONE HUNDRED TWELVE THOUSAND TWO HUNDRED TEN DOLLARS
AND 80/100 (U.S. $8,112,210.80) (the "BASE PURCHASE PRICE") PLUS the
"Percentage Payments" to be paid in the future as provided for in Section
1.3(c) below.
(b) The Base Purchase Price shall be paid at the Closing as follows: by wire
transfer in immediately available federal funds to the following bank
account of Mitsukoshi: Central Pacific Bank, Transit ABA No. 000000000;
Account Name: Mitsukoshi USA Inc.; Account Number: 00-00000-0; Contact
Person, Xx. Xxxxxxxx Xxxxxx, Vice President & Manager, International
Business Development, Corporate Banking Division, 000-000-0000.
(c) Subsequent and in addition to payment of the Base Purchase Xxxxx, Xxxxxxx
agrees to pay to Mitsukoshi the "PERCENTAGE PAYMENTS" as follows:
(i) the Percentage Payments shall be equal to Three and Seventy-five
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Hundredths Percent (3.75%) of "Net Oahu Retail Sales" (as defined
below) made by Tiffany or any "Tiffany Affiliate" (as defined below)
during the period commencing February 1, 1998 and ending January 31,
2003 (the "PAY-OUT PERIOD");
"NET OAHU RETAIL SALES" for the purposes of this Agreement is
hereby defined to mean and include:
(1) the aggregate gross selling price (exclusive of any
packing and shipping charges and any taxes with respect
to sales which are either added to or are included in
the sales price) for all merchandise sold in, through
or from the "Stores" (as hereinafter defined). The term
"STORES" means any XXXXXXX & CO. retail store operated
by Tiffany or Tiffany's Affiliate on the Island of
Oahu, excluding any store operated by Tiffany or a
Tiffany Affiliate at the Ala Moana Shopping Center (or,
should Tiffany or a Tiffany Affiliate cease to operate
a store at the Ala Moana Shopping Center, any store
opened by Tiffany or a Tiffany Affiliate on the Island
of Oahu to replace such store);
(2) charges made by Tiffany or a Tiffany Affiliate or by
anyone on behalf of Tiffany or a Xxxxxxx Xxxxxxxxx or
by or on behalf of any other person for the rendition
of any service of any kind whatsoever to Xxxxxxx's or a
Xxxxxxx Xxxxxxxxx's customers and any other persons in,
on, through or from the Stores, including repair work,
and charges made by or on behalf of Tiffany or a
Tiffany Affiliate or any other persons in the course of
any other business done in, on, through or from the
Stores, but only to the extent that Tiffany or a
Tiffany Affiliate would otherwise include such charges
in "net sales" at the Stores by application of its
standard U.S. accounting principles, consistently
applied;
(3) the amount of all orders for merchandise or other
property or services taken at the Stores by any person
whether the merchandise or other property or services
which are the subject of such orders are delivered or
rendered from or at the Stores or from or at a place
other than the Stores, but only to the extent that
Tiffany or a Tiffany Affiliate would otherwise include
such amounts in "net sales" at the Stores by
application of its standard U.S. accounting principles,
consistently applied;
(4) the selling price of all merchandise and other property
and all services delivered from or rendered at the
Stores at the request or order of Tiffany or a Tiffany
Affiliate or any
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other person to a customer or other person pursuant to
an order placed elsewhere, but only to the extent that
Tiffany or a Tiffany Affiliate would otherwise include
such selling price in "net sales" at the Stores by
application of its standard U.S. accounting principles,
consistently applied;
(5) all other sums received or charged during the period
referred to in Section 1.3(c)(i) above by Tiffany or a
Tiffany Affiliate, or any other person, for goods,
services, or things of value in the course of the
conduct of any business on or about the Stores, or in
conjunction with any such business, but only to the
extent that Tiffany or a Tiffany Affiliate would
otherwise include such sums in "net sales" at the
Stores by application of its standard U.S. accounting
principles, consistently applied;
(6) without in any way limiting or qualifying any of the
provisions of the foregoing, it is understood that Net
Oahu Retail Sales for the purposes of this Agreement
include "gross proceeds of sale" and "gross income"
resulting from all sales of goods and services made by
Tiffany or a Tiffany Affiliates or any other person in,
on, through or from the Stores for cash or credit, as
said terms are presently defined in, and/or which are
taxable under, the provisions of Chapter 237 (General
Excise Tax Law), Hawaii Revised Statutes, as the same
shall be amended from time to time, provided, however,
for the purposes of this Agreement, Net Oahu Retail
Sales shall not include wholesale sales (sales for
retail) or "Corporate Sales" meaning transactions
credited to Xxxxxxx's "Corporate Division" by
application of Tiffany's or a Tiffany Affiliate's
standard U.S. accounting principles, consistently
applied; Tiffany or a Tiffany Affiliate may also deduct
from Net Oahu Retail Sales any cash refund or credit
(including merchandise credits, house account credits
and charge and credit card credits) made or given to a
customer at the Stores, provided that the cost of any
premiums, advertising or other promotional devices
shall not be deductible or construed as a discount,
refund, allowance or credit, but only to the extent
that Tiffany or the Tiffany Affiliate would otherwise
deduct such refund or credit from "net sales" at the
Stores by application of its standard U.S. accounting
principles, consistently applied.
(7) For the purposes of this definition, no item will be
excluded from "net sales" at the Store by application
of Xxxxxxx's standard U.S. accounting principles,
consistently applied,
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unless such exclusion would be consistent with generally
accepted U.S. accounting principles.
(ii) Percentage Payments will be made for Net Oahu Retail Sales in
each fiscal quarter ending as of the last day of January,
April, July and October and will be due and payable within
thirty (30) days following the end of each fiscal quarter
during the Pay-out Period. Percentage Payments which have not
been paid within five (5) days after the same shall have
become due and payable shall bear interest at the rate of one
percent (1%) per month from the date the same became due and
payable until paid, whether or not demand be made therefore;
(iii) the term "TIFFANY AFFILIATE" means any corporation or business
entity controlling, controlled by or under common control with
Tiffany, directly or indirectly, through control of voting
stock of 50% or greater.
(iv) Mitsukoshi shall be entitled at any time within two (2) years
after the receipt of any Percentage Payments to cause an audit
to be made by any person authorized by Mitsukoshi of all
records and books of account of Tiffany or a Xxxxxxx Xxxxxxxxx
relating to the Stores together with any supporting data
relating thereto, and if such audit discloses that Tiffany or
a Tiffany Affiliate's Net Oahu Retail Sales as previously
reported for the period audited were under- or overstated,
then Tiffany shall immediately pay to Mitsukoshi the
additional Percentage Payments due for the period audited
together with interest thereon as provided for in Section
1.3(c)(ii) above and Mitsukoshi will refund any overpayment.
All audit costs shall be for Mitsukoshi's account unless such
audit discloses a deficiency in excess of three percent (3%)
of the amount originally reported, in which case Tiffany will
pay to Mitsukoshi its out-of-pocket costs of conducting such
audit.
(v) Mitsukoshi shall be entitled to receive any and all monthly,
year end and other periodic sales reports or statements
provided by Tiffany or a Tiffany Affiliate to the landlords or
owners of the Sheraton Moana Hotel and Hilton Hawaiian Village
which describe or detail the amount of total sales or receipts
generated by Tiffany or any Tiffany Affiliate. If Tiffany or a
Tiffany Affiliate shall open another store or location on the
Island of Oahu, then Mitsukoshi and Tiffany shall agree on the
manner of reporting the sales and receipts for the such store
or location, which reporting shall be substantially similar to
such reporting provided for the Sheraton Moana Hotel and
Hilton Hawaiian Village.
(vi) Mitsukoshi shall be entitled to receive any documentation
relating
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to any adjustment made by Tiffany or a Tiffany Affiliate to
its calculation of total sales or receipts for its current
stores at the Sheraton Moana Hotel and Hilton Hawaiian Village
and any future Tiffany stores or locations on the Island of
Oahu. Any such adjustment shall also be made to the
calculation of Net Oahu Retail Sales and Tiffany shall
immediately pay to Mitsukoshi any additional Percentage
Payment, together with interest thereon as provided for in
Section 1.3(c)(ii) above, and Mitsukoshi shall immediately
refund any overpayment. The documentation described in this
Section 1.3(c)(vi) shall mean any documentation resulting from
an audit, examination or review of the total sales or receipts
generated by Tiffany or a Tiffany Affiliate.
(vii) Tiffany agrees that any transfer of goods by Tiffany between
any of the Stores, on the one hand, and any store operated by
Tiffany or a Tiffany Affiliate at the Ala Moana Shopping
Center (or any store opened by Tiffany or a Tiffany Affiliate
on the Island of Oahu to replace such store) (either of the
foregoing an "Excluded Location"), on the other hand, shall
not be made for the purpose of, or where such transfer would
have the effect of, depriving Mitsukoshi of the benefit of a
sale to an interested customer which otherwise would have been
made at, in, or from the Stores, provided that this section
shall not apply to a transfer of goods made in the ordinary
course of business from a Store to the Excluded Location for
the convenience of an interested customer if such interested
customer would have purchased at the Excluded Location but for
an out-of-stock situation. Tiffany agrees that transfers of
goods from the Excluded Location to the Stores shall be made
available on the same basis that transfers of goods from the
Stores to the Excluded Location are made, in either case, for
the purpose of remedying out-of-stock situations
SECTION 2. Closing
THE TRANSACTIONS EVIDENCED BY THIS AGREEMENT HAVE BEEN CONSUMMATED AT A
CLOSING AS FOLLOWS, IT BEING AGREED THAT ALL DELIVERIES AT SUCH CLOSING SHALL BE
DEEMED TO HAVE OCCURRED SIMULTANEOUSLY AND SIMULTANEOUSLY WITH THE EXECUTION AND
DELIVERY OF THIS AGREEMENT:
2.1 Closing Date. The closing of the transactions evidenced by this Agreement
(the "CLOSING") commenced at 10:00 A.M. local time at the offices of Xxxxxxxxx,
Sugita & Goda, 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxx 00000 on the date
of this Agreement (such date, together with any adjournment thereof is
hereinafter referred to as the "CLOSING DATE").
2.2 Closing Deliveries of Mitsukoshi. At Closing, Mitsukoshi delivered the
following documents to Tiffany, each duly executed on behalf of Mitsukoshi
(except for
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documents described in (f) below and in a form reasonably satisfactory to
counsel for Tiffany:
(a) a BILL OF SALE substantially in the form attached hereto as EXHIBIT 2.2(a)
conveying title to Tiffany of the Assets;
(b) SURRENDERS OF LEASE substantially in the forms attached hereto as EXHIBIT
2.2(b) duly executed by the landlord for the Premises;
(c) certified copies of appropriate resolutions adopted by Mitsukoshi's Board
of Directors providing for the execution and delivery of this Agreement
and the performance of the obligations contained therein;
(d) counterpart to the PAYROLL AGREEMENT substantially in the form attached
hereto as EXHIBIT 2.2(d);
(e) counterpart to the ASSIGNMENT AND ASSUMPTION OF ASSUMED LIABILITIES
substantially in the form attached hereto as EXHIBIT 2.2(e);
(f) termination statements or releases in respect of all liens, mortgages,
pledges, encumbrances, conditional sales agreements, security interests,
title retention devices or charges over or upon the Assets except as
permitted by Section 3.8 below, each duly executed by those persons
necessary to make such statement or release effective; and
(g) counterpart of this Agreement.
2.3 Closing Deliveries of Tiffany. At Closing, Tiffany delivered the following
consideration and documents to Xxxxxxxxxx, each duly executed on behalf of
Xxxxxxx and in a form reasonably satisfactory to counsel for Xxxxxxxxxx:
(a) the Closing Purchase Price;
(b) counterpart to the Payroll Agreement;
(c) certified copies of appropriate resolutions adopted by Xxxxxxx's board of
directors providing for the execution and delivery of this Agreement and
the performance of the obligations contained therein;
(d) counterpart to the Assignment and Assumption of Assumed Liabilities; and
(e) counterpart of this Agreement.
2.4 No Agreed Allocation of Purchase Price. Xxxxxxxxxx and Tiffany acknowledge
and agree that each party waives any requirement to agree to the allocation of
the aggregate purchase price paid for the Assets. Xxxxxxxxxx and Tiffany further
acknowledge and agree that there is no allocation of such purchase price which
is
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binding on either party for federal income tax purposes.
SECTION 3. Representations, Warranties and Agreements of Mitsukoshi.
AS AN INDUCEMENT TO TIFFANY TO ENTER INTO THIS AGREEMENT AND TO
CONSUMMATE THE TRANSACTIONS EVIDENCED HEREBY, XXXXXXXXXX REPRESENTS AND WARRANTS
TO XXXXXXX AND AGREES AS FOLLOWS, EACH SUCH REPRESENTATION, WARRANTY AND
AGREEMENT TO BE EFFECTIVE AS OF THE CLOSING DATE:
3.1 Organization. Mitsukoshi is a corporation duly organized, validly existing
and in good standing under the laws of the State of New York and has full
corporate power to own the Assets and conduct the Business.
3.2 Corporate Authority. The execution, delivery and performance of this
Agreement by Xxxxxxxxxx has been duly authorized and approved by all requisite
corporate action on the part of Mitsukoshi.
3.3 Trademarks and Trade Names etc. Xxxxxxxxxx has not licensed anyone to use
the trademarks or trade names TIFFANY or XXXXXXX & CO.
3.4 Leases, Contracts and Commitments. SCHEDULE 3.4 attached hereto sets forth a
list of each lease (under which Xxxxxxxxxx is either lessee or lessor), contract
or other commitment of Xxxxxxxxxx being assigned to Tiffany.
3.5 Employees. SCHEDULE 3.5 sets forth a list of the names and current annual or
hourly salary or pay rates of each of the employees actively employed by
Xxxxxxxxxx at the Business as of November 30, 1997 and not then on a leave of
absence.
3.6 Compliance with Laws. Except as set forth in SCHEDULE 3.6 hereto, to the
best of Xxxxxxxxxx's knowledge, there has not been any non-compliance or alleged
non-compliance with applicable statutes, orders, rules or regulations
promulgated by governmental authorities relating in any respect to the Assets or
the operation of the Business which non-compliance or alleged non-compliance
would, if successfully prosecuted or otherwise determined, materially and
adversely affect the Business or the Assets.
3.7 Litigation. SCHEDULE 3.7 sets forth a brief description of each pending
lawsuit, civil proceeding instituted by a governmental agency, criminal
proceeding, indictment, administrative proceeding, governmental investigation,
demand letter or arbitration (i) to which Xxxxxxxxxx is a party (ii) or of which
Xxxxxxxxxx is a subject or (iii) to which the Assets are subject and which, in
respect of items (i) through (iii) inclusive, relates to the Business,
specifying the damage or relief sought, the name of counsel for Xxxxxxxxxx in
charge of such matter and the current status of such action. Except as set forth
in Schedule 3.7, to the best of Xxxxxxxxxx's knowledge there is no such lawsuit,
proceeding, indictment, investigation, demand or arbitration pending, or, to the
knowledge of Xxxxxxxxxx, threatened, which, if decided adversely against
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Xxxxxxxxxx, would have a material adverse effect upon the Assets or upon the
Business.
3.8 Assets. Xxxxxxxxxx owns, leases or has legal right to use all of the Assets
to be acquired hereunder. All equipment referred to in Section 1.1(a) is being
sold to Tiffany in operating condition. Except as set forth in SCHEDULE 3.8(a)
(the "PERMITTED EXCEPTIONS"), Mitsukoshi has good and marketable title to all of
the Assets, which shall be conveyed free and clear of all liens, mortgages,
deeds of trust, pledges, encumbrances, conditional sales agreements, security
interests, title retention devices or charges of any kind except (a) liens for
current taxes or assessments not yet due and payable and (b) statutory liens
arising in the ordinary course of business. All of the Assets are located on the
Premises other than such Assets listed on SCHEDULE 3.8(b) attached, which are
located as indicated in said schedule.
3.9 Material Changes Since November 30, 1997. Except as otherwise set forth in
SCHEDULE 3.9 attached, since November 30, 1997 Mitsukoshi has not, except in the
ordinary course of business, (a) made any material change in the property, plant
or equipment or its other assets or properties employed in the Business; (b)
sold or otherwise disposed of any of the leases pertaining to such property,
plant or equipment, entered into any renewals or extensions of existing leases
or entered into any new leases; (c) entered into any contract, license,
franchise, or commitment, or made any capital expenditures or commitment
therefor or waived any rights relating to Xxxxxxxxxx's property, plant or
equipment or its other assets or properties employed in the Business; or (d)
removed, or permitted to be removed, from any building, facility or real
property, any inventory, supplies, machinery, equipment, fixture, vehicle, or
other similar personal property or parts thereof used in the Business.
3.10 Labor Matters. To the best of Xxxxxxxxxx's knowledge, there is no labor
strike, disturbance, union recognition campaign, National Labor Relations
Board-supervised election proceeding or unfair labor practice proceeding pending
or threatened against Xxxxxxxxxx in respect of the Business and none of the
Employees listed in SCHEDULE 13.4(a) was represented in its employment relations
with Mitsukoshi by a union or other labor organization. Xxxxxxxxxx, to the best
of its knowledge, is not aware of any pending or threatened investigation by the
United States Occupational Safety and Health Administration or any state or
local governmental agency or authority concerned with work-place health or
safety in respect of the Business. Xxxxxxxxxx's employees have not presented to
Xxxxxxxxxx any concerted protest or complaint concerning work-place health,
safety or hygiene in the Business.
3.11 Investment Banking and Other Fees. Xxxxxxxxxx has not dealt with any
investment banking firm, finder, broker or dealer in connection with the
transactions contemplated hereby.
3.12 Disclosure. No representation or warranty by Xxxxxxxxxx herein contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained herein not misleading.
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3.13 Employee Benefit Plans and Similar Arrangements.
(a) SCHEDULE 3.13 lists all employee benefit plans and collective bargaining,
labor and employment agreements relating to the Business or other similar
arrangements relating to the Business in effect as of January 31, 1998,
including, without limitation, any profit-sharing, deferred compensation,
bonus, stock option, stock purchase, pension, retainer, consulting,
retirement, severance, welfare or incentive plan or agreement; any plan,
agreement or arrangement providing for fringe benefits or perquisites to
employees, officers, directors or agents, including but not limited to
benefits relating to employer-supplied automobiles, clubs, medical,
dental, hospitalization, life insurance and other types of insurance; any
employment agreement; or any other "employee benefit plan" (within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended through the date of this Agreement ("ERISA")).
(b) Xxxxxxxxxx has delivered to Tiffany true and complete copies of all
documents and summary plan descriptions with respect to such plans,
agreements and arrangements, or summary descriptions of any such plans,
agreements or arrangements not otherwise in writing to the extent that
same may exist.
3.14 Environmental Warranty. Xxxxxxxxxx has not disposed of, at the Leased
Premises or elsewhere, any hazardous materials generated as a result of the
Business or any construction or demolition activity at the Premises except in
compliance with applicable law.
3.15 Conduct of Business Since November 30, 1997. SINCE NOVEMBER 30, 1997
XXXXXXXXXX HAS:
(a) carried on the Business in the regular course and substantially in the
same manner as heretofore carried on by Xxxxxxxxxx;
(b) satisfied obligations under all agreements and commitments related to the
Business; specifically, all valid invoices submitted by suppliers or
contractors to the Business have been paid in accordance with past
practices;
(c) maintained its books of account and records for the Business in the usual,
regular and ordinary manner in accordance with generally accepted
accounting principles applied on a consistent basis;
(d) withheld and deposited all payroll withholding taxes as and when due;
(e) maintained the Premises in customary repair, order and condition,
reasonable wear and tear excepted; and
(f) maintained the confidentiality of all trade secrets and proprietary
business information related to the Business.
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3.16 Negative Covenants. SINCE NOVEMBER 30, 1997, XXXXXXXXXX HAS NOT, EXCEPT IN
THE ORDINARY AND USUAL COURSE OF THE BUSINESS:
(a) altered or modified its pricing policies with respect to the sales of
merchandise in the Business or the terms of any such sales;
(b) made or contracted for any acquisition of assets for the Business, or
entered into or amended any contracts, agreements or leases;
(c) waived any rights of substantial value in connection with the Business;
(d) allowed any liens, charges, mortgages or security interests to attach to
the Assets; or
(e) taken any act or omitted to do any act, or permitted any act or omission
to act, which has caused a breach of any of its contracts or leases if
such default would, if enforced against Xxxxxxxxxx, have a material
adverse effect on the Business or the Assets.
SECTION 4. Representations, Warranties and Agreements of Tiffany.
AS AN INDUCEMENT TO XXXXXXXXXX TO ENTER INTO THIS AGREEMENT AND TO
CONSUMMATE THE TRANSACTIONS EVIDENCED HEREBY, TIFFANY REPRESENTS AND WARRANTS TO
XXXXXXXXXX AND AGREES AS FOLLOWS EACH SUCH REPRESENTATION, WARRANTY AND
AGREEMENT TO BE EFFECTIVE AS OF THE CLOSING DATE:
4.1 Organization of Xxxxxxx. Xxxxxxx is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York.
4.2 Corporate Authority. The execution, delivery and performance by Tiffany of
this Agreement has been duly authorized and approved by all requisite corporate
action on the part of Tiffany.
4.3 Investment Banking and Other Fees. Tiffany has not dealt with any investment
banking firm, finder, broker or dealer in connection with the transactions
contemplated hereby.
4.4 Disclosures. No representation or warranty by Tiffany herein contains any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained herein not misleading.
4.5 No Pending Actions. No action or other proceeding whatsoever is now pending
or threatened in writing against Tiffany or any shareholders of the foregoing
which call into question or seeks to set aside or enjoin any of the approvals or
authorizations of the transactions evidenced by this Agreement, or the
performance of Xxxxxxx's obligations hereunder.
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SECTION 5.
[intentionally deleted]
SECTION 6.
[intentionally deleted]
SECTION 7.
[intentionally deleted]
SECTION 8. Transfer Expense.
Tiffany will pay any excise, sales or transfer taxes payable in connection
with the transactions contemplated hereby. At the Closing, Tiffany delivered to
Mitsukoshi a check in the amount of THIRTY-EIGHT THOUSAND THREE HUNDRED
THIRTY-EIGHT AND 78/100 DOLLARS (U.S. $38,338.78), the amount shown as due on
the excise, sales or transfer tax return prepared by Xxxxxxxxxx reporting the
sale evidenced hereby. Tiffany has furnished Xxxxxxxxxx with a properly
completed resale certificate at the Closing in connection with the transfer of
inventory. In the event that any such tax liability is subsequently adjusted,
Tiffany shall pay any amount due (including interest and penalties, if any) and
shall be entitled to any overpayment. Tiffany will also pay any filing or
recording fees, license, transfer fees and similar asset transfer expenses
relating to the transactions contemplated hereby in connection with the
instruments of transfer herein.
SECTION 9. Indemnification.
9.1 Xxxxxxxxxx's Indemnification. Xxxxxxxxxx hereby agrees to indemnify,
defend and hold harmless Tiffany, its officers, directors, shareholders,
employees and authorized agents, and each other person who controls Tiffany, at
all times from and after the date of this Agreement, against and in respect of
any claims by third parties, and all suits, actions, proceedings, demands,
assessments, judgments, costs, reasonable attorneys' fees and expenses incident
to such third party claims for any loss, cost, damage or deficiency arising from
or related to: (i) Xxxxxxxxxx's breach or non-performance of any agreement,
representation, warranty or undertaking contained in this Agreement, (ii)
Xxxxxxxxxx's acts or omissions in connection with the operation of the Business
(except to the extent Tiffany shall have expressly assumed Xxxxxxxxxx's
obligations to a third party in connection with such acts or omissions) or (iii)
any lawsuit or any court, administrative or other proceeding now pending against
Mitsukoshi or subsequently initiated against Tiffany by third parties in
connection with the operation of the Business by Xxxxxxxxxx.
9.2 Tiffany's Indemnification. Xxxxxxx xxxxxx agrees to indemnify, defend
and hold harmless Xxxxxxxxxx, its officers, directors, shareholders, employees
and authorized agents, and each other person who controls Xxxxxxxxxx, at all
times from and after the date of this Agreement, against and in respect of any
claims by third parties, and all suits, actions, proceedings, demands,
assessments, judgments, costs,
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reasonable attorneys' fees and expenses incident to such third party claims, for
any loss, cost, damage or deficiency arising from or related to: (i) the failure
by Tiffany to duly perform and discharge any Assumed Liability or arising out of
or in any way related to the acts or omissions of Tiffany in connection with the
operation of the Business on or after the Closing Date or (ii) from Tiffany's
breach or non-performance of any agreement, representation, warranty or
undertaking contained in this Agreement.
9.3 Third Party Claims. If a claim by a third party is made against an
indemnified party, and if the indemnified party intends to seek indemnity with
respect thereto under this Section 9, such indemnified party shall promptly
notify the indemnifying party of such claim. The indemnifying party shall have
thirty (30) days after receipt of such notice to undertake, conduct and control,
through counsel of its own choosing (subject to the consent of the indemnified
party, such consent not to be unreasonably withheld) and at its expense, the
settlement or defense therefor, and the indemnified party shall co-operate with
it in connection therewith; provided that: (i) the indemnifying party shall not
thereby permit to exist any lien, encumbrance or other adverse charge upon any
assets of any indemnified party; (ii) the indemnifying party shall permit the
indemnified party to participate in such settlement or defense through counsel
chosen by the indemnified party, provided that the fees and expenses of such
counsel shall be borne by the indemnified party, and provided further that such
participation shall not affect the control of the matter by the indemnifying
party; and (iii) the indemnifying party shall promptly reimburse the indemnified
party for the full amount of any loss resulting from such claim and all related
expense incurred by the indemnified party within the limits of this Section 9.
If the indemnifying party does not notify the indemnified party within thirty
(30) days after receipt of the indemnified party's notice of a claim of
indemnity hereunder that it elects to undertake the defense thereof, the
indemnified party shall have the right to contest, settle or compromise the
claim in the exercise of its exclusive discretion at the expense of the
indemnifying party. So long as the indemnifying party is reasonably contesting
any such claim in good faith, the indemnified party shall not pay or settle any
such claim. Notwithstanding the foregoing, the indemnified party shall have the
right to pay or settle any such claim if, in the reasonable judgement of the
indemnifying party (consent to such payment or settlement not to be unreasonably
denied or delayed) the payment or settlement of such claim will not adversely
affect the indemnifying party, provided that in the event of such payment or
settlement it shall waive any right to indemnity therefor by the indemnifying
party. The indemnified party shall join in a settlement of a third party claim
proposed by the indemnifying party, provided that such settlement shall be at
the expense of the indemnifying party, that such settlement shall achieve the
release and discharge of the indemnified party by such third party and that such
settlement shall not prejudice the indemnified party's rights against such third
party claimant or any other third party with respect to matters unrelated to the
third party claim in issue. The indemnified party shall provide reasonable
cooperation in the defense of any third party claim and shall, at its own
expense, make available its employees and such books and records as may be
within its control.
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SECTION 10. Termination of Distribution Agreement.
The parties hereby mutually agree that the Distribution Agreement made 28
November 1988, as amended, and all appurtenant agreements thereto between the
parties hereto (hereinafter the "Distribution Agreement") shall be, as and at
the Closing, deemed mutually terminated and discharged, provided, however, that
all obligations of the parties which, pursuant to the Distribution Agreement,
were intended to survive the termination, expiration or cancellation of the
Distribution Agreement shall survive, including, but not limited to,
Mitsukoshi's obligation to satisfy its payment obligations to Tiffany with
respect to merchandise sold and delivered by Tiffany to Mitsukoshi. All purchase
orders issued by Xxxxxxxxxx to Tiffany for merchandise needed in connection with
the Business but undelivered as of the Closing shall be, as of the Closing,
deemed cancelled and discharged and neither party shall have any further rights
or obligations thereunder, including but not limited to Xxxxxxxxxx's prior
obligation to make payment under such purchase orders.
SECTION 11.
[Intentionally Deleted]
SECTION 12.
[Intentionally Deleted]
SECTION 13. Other Provisions
13.1 Further Assurances. At its own expense, each party will, at such time and
from time to time on and after the Closing Date, upon request by the other
party, execute, acknowledge and deliver or will cause to be done, executed,
acknowledged and delivered, all such further acts, deeds, assignments,
transfers, conveyances, powers of attorney and assurances that may be reasonably
required for the conveying, transferring, assigning, delivering, assuring and
confirming to Tiffany, or to its respective successors and assigns, or for
aiding and assisting in collecting or reducing to possession, any or all of the
properties and assets of Xxxxxxxxxx sold hereunder or for the carrying out of
the purposes of this Agreement.
13.2 Bulk Sales Law. Article 6 of the Uniform Commercial Code as in effect in
Hawaii shall be satisfied or counsel for Xxxxxxx and Xxxxxxxxxx shall agree that
the same need not be complied with. Tiffany shall file the bulk sales report to
the Department of Taxation of the State of Hawaii not later than ten (10) days
after the Closing Date.
13.3 Complete Agreement. This Agreement, including the Exhibits and Schedules
attached hereto and the documents referred to herein shall constitute the entire
agreement between the parties hereto with respect to the subject matter hereof
and shall supersede all previous negotiations, commitments, and writings with
respect to such subject matter.
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13.4 Employees and Employment Benefits.
(a) Tiffany has extended an offer of employment to each of Xxxxxxxxxx's
employees listed on SCHEDULE 13.4(a) and actively employed on January 31,
1998 on the following terms and conditions: (i) employment pursuant to
such offer shall commence at 12:01 a.m. Hawaii Standard Time on February
1, 1998 (the "EMPLOYMENT DATE"); (ii) the salary or wages payable to each
such employee by Tiffany shall be at least equal to the salary or wages
now paid by Xxxxxxxxxx; (iii) such employees shall be provided with
welfare benefits substantially equivalent to those provided by Xxxxxxxxxx,
including continued participation, by those employees participating as of
January 31, 1998, and their dependents, if any, in a health care plan
substantially equivalent to the plan now maintained by Xxxxxxxxxx for
those employees and their dependents which plan to be provided by Tiffany
shall cover pre-existing conditions covered by the former plan and which
coverage shall be effective immediately upon the commencement of
employment of each of the persons so hired without any waiting period,
pre-existing condition limitations and/or exclusions, loss of coverage, or
any gap in coverage. Pursuant to Section 13.18 of this Agreement, the
foregoing undertaking is not intended by the parties to this Agreement to
provide any third party with rights as a beneficiary of such undertaking.
(b) Effective with the Employment Date each of such employees so listed on
Schedule 13.4(a) who has accepted employment with Tiffany shall cease to
be an employee of Mitsukoshi. Xxxxxxxxxx acknowledges the obligation to
provide any required notices and continuation coverage under the
Comprehensive Budget Reconciliation Act ("COBRA", Public Law No. 99-272)
or regulations and/or proposed regulations promulgated thereunder to all
employees of Mitsukoshi listed on Schedule 13.4(a) whose employment with
Xxxxxxxxxx is terminated as a consequence of the transactions evidenced by
this Agreement, to give such required notices and provide such coverage to
the dependents of such employees, and to give copies of such notices and
the names and addresses of the persons to whom such notices were sent to
Xxxxxxx promptly after giving such notices. Xxxxxxxxxx agrees to indemnify
and defend Xxxxxxx against any liability, cost or expense which Xxxxxxx
might incur as a result of Xxxxxxxxxx's failure to comply with it
obligations under COBRA, if any, with respect to qualifying events that
may occur prior to the Employment Date.
(c) Except as expressly provided in this Section 13.4, Xxxxxxx shall have no
liability with respect to any Employee Benefit Plan or any claims related
thereto. For the purposes of this Section 13.4(c), the term "EMPLOYEE
BENEFIT PLAN" includes each pension, retirement, profit-sharing, deferred
compensation, bonus or other incentive plan, or other employee benefit
program, arrangement, agreement or understanding, or medical, vision,
dental or other health plan, or vacation or severance plan, understanding
or arrangement, or any other employee benefit plan, including, without
limitation, any "employee benefit plan" as defined in Section 3(3) of
ERISA to which Xxxxxxxxxx contributes or is a party or is bound
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or under which it may have liability and under which employees or former
employees of Xxxxxxxxxx engaged in the Business (or their beneficiaries)
are eligible to participate or derive a benefit.
(d) Coverage for the employees accepting employment with Xxxxxxx (the
"TRANSFERRED EMPLOYEES") under the welfare, vacation and fringe benefit
plans maintained by Xxxxxxxxxx, including but not limited to life
insurance, severance pay and medical, hospitalization, disability, dental
or vision plans, and vacation plans (the "WELFARE PLANS"), shall continue
through January 31, 1998 and shall be the responsibility of Mitsukoshi
through that date, but only to the extent that the Transferred Employees
remain eligible to participate in the Welfare Plans. Coverage under the
Welfare Plans for any employee who is retired or terminated from
Mitsukoshi on or before the Employment Date, or who is on disability leave
on or before the Employment Date, shall remain the responsibility of
Xxxxxxxxxx to the extent that such former employees and/or retirees are
eligible participants and/or beneficiaries under the Welfare Plans.
Xxxxxxxxxx shall not be responsible for providing coverage to the
Transferred Employees under the Welfare Plans on or after the Employment
Date, except as provided in Section 13.4(e) below. Xxxxxxxxxx shall in all
events be responsible for the payment of benefits under the Welfare Plans
based on occurrences prior to the Employment Date, and Xxxxxxxxxx shall
not be responsible for the payment of future retiree medical benefits
under its medical plan to any Transferred Employee except to the extent
that such medical benefits are payable with respect to occurrences prior
to the Employment Date. For the purposes of this Section 13.4, an
"occurrence" for medical plan purposes shall be the provision of treatment
or medication, not an event which precipitates the need for such treatment
or medication.
(e) Notwithstanding any other provisions of this Agreement, Xxxxxxxxxx agrees
to indemnify and hold Xxxxxxx harmless from and against any liabilities or
obligations, including reasonable attorneys' fees and disbursements,
resulting from (i) any and all claims for life insurance, disability and
medical benefits based on occurrences before the Employment Date, whether
such claims are asserted before, on or after the Employment Date, (ii) any
and all other welfare and fringe benefits claims based on occurrences
before the Employment Date, whether such claims are asserted before, on or
after the Employment Date, (iii) any and all life insurance, disability,
severance (including severance claims based upon the transactions
contemplated hereunder), medical or other welfare and fringe benefit
claims of any individual (or his covered dependents) who retired from
Mitsukoshi before the Employment Date or who died before the Employment
Date and who had been employed at any time by Xxxxxxxxxx, regardless of
whether such claim is asserted before, on or after the Employment Date and
(iv) any and all claims (including third party claims) under or with
respect to any pension or retirement plan or any plan of deferred
compensation contributed to or maintained by Xxxxxxxxxx. The provisions of
Section 9.3 above shall apply to the obligation of indemnity provided in
this Section 13.4(e) as well.
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(f) Notwithstanding any other provisions of this Agreement, Xxxxxxx agrees to
indemnify and hold Xxxxxxxxxx harmless from and against any cost,
liabilities or obligations, including attorney's fees and disbursements,
resulting from (i) any and all claims asserted by the Transferred
Employees and/or their eligible dependents and/or beneficiaries, if any,
for life insurance, disability and medical benefits based on occurrences
on or after the Employment Date under any plan maintained or sponsored by
Xxxxxxx on or after the Employment Date, (ii) any and all other welfare
and fringe benefit claims asserted by the Transferred Employees and/or
their eligible dependents and/or beneficiaries, if any, based on
occurrences on or after the Employment Date under any such welfare and
fringe benefit plans provided by Xxxxxxx to the Transferred Employees,
(iii) any and all claims (including third party claims) under or with
respect to any pension or retirement plan or any plan of deferred
compensation which Xxxxxxx sponsors, contributes to or otherwise
participates in on or after the Employment Date, and (iv) any and all
liability, cost or expense arising out of or related to or as a result of
Xxxxxxx's failure to comply with its obligations under COBRA, if any, with
respect to qualifying events regarding the Transferred Employees and their
eligible dependents, if any, that may occur on or after the Employment
Date. The provisions of Section 9.3 above shall apply to the obligation of
indemnity provided in this Section 13.4(f) as well.
(g) Xxxxxxxxxx represents and warrants that the forty-five (45) day notice
period as set forth in the Hawaii Dislocated Workers Act, Chapter 394B of
the Hawaii Revised Statutes, as amended, has expired.
13.5 Survival of Representations and Warranties.
(a) The representations and warranties and indemnities set forth in this
Agreement shall survive the Closing Date.
(b) Any claim between the parties hereto (other than a claim for
indemnification in respect of third party claims) predicated on a breach
of warranty or representation contained in this Agreement shall survive
the Closing Date but shall be barred after January 31, 1999.
(c) Claims for indemnification in respect of third party claims, including
third party claims for taxes, shall survive the Closing Date but shall be
barred: (i) after the applicable statute of limitations, with respect to
claims for unpaid taxes of any type; (ii) after January 31, 2001, with
respect to third-party claims arising out of a breach of the warranty set
forth in Section 3.14 above; and (iii) after January 31, 1999, with
respect to any other third party claim.
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13.6 Waiver, Discharge, etc. This Agreement may not be released, discharged,
abandoned, changed or modified in any manner, except by an instrument in writing
signed on behalf of each of the parties hereto by their duly authorized
representatives.
13.7 Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given and effective when
delivered by telegram, telex or telecopier, or by Express Mail, Federal Express
or like service, or on the third mail delivery date after it is deposited in the
United States mail, postage prepaid by certified or registered mail, return
receipt requested, addressed to the parties as follows:
If to Tiffany: Xxxxxxx and Company
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
Telecopier Number: 000-000-0000
If to Mitsukoshi Mitsukoshi (U.S.A.), Inc.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Attention: Executive Vice President
Telecopier Number: 000-000-0000
with a copy to: Xxxxxxxxx, Sugita & Goda
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attention: Xx. Xxxx Xxxx
Telecopier Number: 808-539-8799
or at such other address as either party hereto may designate in writing to the
other party hereto in the aforesaid manner.
13.8 Expenses. Except as provided in Section 8 hereof, each party hereto shall
pay its own expenses incident to this Agreement and the preparation to
consummate the transactions provided for herein.
13.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Hawaii. The venue for any action with
respect to this Agreement shall be in the courts in Honolulu, Hawaii.
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13.10 Successors and Assigns. Subject to Section 13.12 below, this Agreement
shall be binding upon and inure to the benefit of the parties hereto, and the
successors or assigns of the parties hereto.
13.11 Execution in Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become a binding agreement when one or more counterparts have been signed
by each party and delivered to the other party.
13.12 Permitted Assigns. Xxxxxxxxxx may not assign this Agreement, or any of the
rights or benefits provided hereunder, or delegate any of its duties hereunder,
except with the express written permission of Xxxxxxx, which may be withheld or
granted in its sole discretion; provided, however, Xxxxxxxxxx shall have the
right at any time, to assign, in whole or in part, the Percentage Payments at
any time payable hereunder to such assignee or assignees as may be designated by
Xxxxxxxxxx in a written notice to Xxxxxxx. In the event of such assignment of
the Percentage Payments, Xxxxxxx shall pay to Xxxxxxxxxx's designee at the
address mentioned in any such notice for the period covered by such assignment
each installment of the Percentage Payments when due, subject to the terms of
this Agreement. Xxxxxxx xxx not assign this Agreement, or any of the rights or
benefits provided hereunder, or delegate any of its duties hereunder, except
with the express written permission of Xxxxxxxxxx, which may be withheld or
granted in its sole discretion.
13.13 Records Retained by Xxxxxxxxxx. For at least five (5) years after the
Closing Date, Xxxxxxxxxx shall preserve and keep, free of charge, all of its
business, tax and personnel records which are not transferred to Xxxxxxx
pursuant to this Agreement and which relate to the Business (the "RETAINED
RECORDS"); provided, however, that such obligation of preservation shall be
suspended if such preservation is prevented by war, strike, fire, flood, act of
God or any other cause not within the reasonable control of Mitsukoshi and which
by the exercise of reasonable diligence Mitsukoshi is unable to prevent.
Xxxxxxxxxx agrees to permit Xxxxxxx, and its attorneys, accountants, agents and
designees, such access to the Retained Records from and after the Closing Date
as Xxxxxxx xxx xxxx necessary or desirable and the right to make copies
therefrom. Any such examination shall be at the expense of Xxxxxxx, shall be
performed at the place where the Retained Records are regularly maintained by
Xxxxxxxxxx and shall not unreasonably interfere with Xxxxxxxxxx's normal
business activities.
13.14 Records Transferred to Xxxxxxx. For at least five (5) years after the
Closing Date, Xxxxxxx shall preserve and keep, free of charge, all of the
records transferred by Xxxxxxxxxx to Xxxxxxx pursuant to this Agreement (the
"TRANSFERRED RECORDS"); provided, however, that such obligation of preservation
shall be suspended if such preservation is prevented by war, strike, fire,
flood, act of God or any other cause not within the reasonable control of
Xxxxxxx and which by the exercise of reasonable diligence Xxxxxxx is unable to
prevent. Xxxxxxx agrees to permit Xxxxxxxxxx, and its attorneys, accountants,
agents and designees, such access to the Transferred Records from and after the
Closing Date as Xxxxxxxxxx may deem necessary or desirable and the right to make
copies therefrom. Any such examination shall be at
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the expense of Xxxxxxxxxx, shall be performed at the place where the Records are
regularly maintained by Xxxxxxx and shall not unreasonably interfere with
Xxxxxxx's normal business activities.
13.15 Filing of Tax Returns. Xxxxxxxxxx agrees to file on a timely basis all tax
returns in connection with the Business that Xxxxxxxxxx may be required to file
by any law or regulation to file in respect of all periods prior to or including
the Closing Date.
13.16 Singular and Plural. As used in this Agreement reference to the singular
shall include reference to the plural and reference to the plural shall include
reference to the singular, unless the context clearly requires otherwise.
13.17 Attorneys Fees. In the event that any party to this Agreement is required
to resort to any action or proceeding in order to enforce any provision of this
Agreement, including the indemnity provisions hereof, the prevailing party in
each such action or proceeding shall be entitled, in addition to such other
relief as may be granted, to a reasonable sum as and for its attorneys' fees and
costs in connection with such action or proceeding; provided that this provision
shall not diminish the right of any indemnified party to receive a full defense
at the expense of the indemnifying party, as otherwise provided for herein.
13.18 Third Party Beneficiaries. No provision in this Agreement shall confer any
third-party beneficiary rights to any party not a signatory hereto.
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IN WITNESS WHEREOF, the parties hereto have executed these presents the day and
year first written above.
XXXXXXX AND COMPANY
("Tiffany")
By: s/s Xxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President - Chief Financial Officer
Duly Authorized
XXXXXXXXXX (U.S.A.), INC.
("Mitsukoshi")
By: s/s Xxxxxx Xxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxx
Title: Executive Vice President
Duly Authorized
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