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UNITED STATES OMB Number: 3235-0145
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SCHEDULE 13D/A
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
Aber Diamond Corporation
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
002893105
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(CUSIP Number)
Patrick B. Dorsey, Esq.
Senior Vice President, General Counsel and Secretary
Tiffany & Co.
727 Fifth Avenue
New York, New York 10022
(212) 755-8000
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
December 7, 2004
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g),
check the following box. /__ /
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7 for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following pages)
SCHEDULE 13D/A
CUSIP NO. 002893105 Page 2 of 9 Pages
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(1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Tiffany & Co. International
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) /__ /
(b) / X /
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(3) SEC USE ONLY
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(4) SOURCE OF FUNDS (See Instructions)
WC
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(d) OR 2(e)
Not applicable. /__ /
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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(7) SOLE VOTING POWER
None
NUMBER OF ----------------------------------------------
SHARES (8) SHARED VOTING POWER
BENEFICIALLY
OWNED BY 8,000,000
EACH ----------------------------------------------
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON WITH
None
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(10) SHARED DISPOSITIVE POWER
8,000,000
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,000,000
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(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
Not applicable. /__ /
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.3%*
* Based on 55,933,232 common shares reported by the Issuer to be outstanding as
of January 31, 2004, as reported by the Issuer in its Form 40-F filed with the
SEC on June 18, 2004.
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(14) TYPE OF REPORTING PERSON
CO
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SCHEDULE 13D/A
CUSIP NO. 002893105 Page 3 of 9 Pages
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(1) NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Tiffany & Co.
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(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) /__ /
(b) / X /
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(3) SEC USE ONLY
--------------------------------------------------------------------------------
(4) SOURCE OF FUNDS (See Instructions)
WC
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(5) CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM
2(d) OR 2(e)
Not applicable. /__ /
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(6) CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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(7) SOLE VOTING POWER
None
NUMBER OF ----------------------------------------------
SHARES (8) SHARED VOTING POWER
BENEFICIALLY
OWNED BY 8,000,000
EACH ----------------------------------------------
REPORTING (9) SOLE DISPOSITIVE POWER
PERSON WITH
None
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(10) SHARED DISPOSITIVE POWER
8,000,000
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(11) AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,000,000
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(12) CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
Not applicable. /__ /
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(13) PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.3%*
* Based on 55,933,232 common shares reported by the Issuer to be outstanding as
of January 31, 2004, as reported by the Issuer in its Form 40-F filed with the
SEC on June 18, 2004.
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(14) TYPE OF REPORTING PERSON
CO, HC
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SCHEDULE 13D/A
CUSIP NO. 002893105 Page 4 of 9 Pages
This Schedule 13D/A ("Amendment No. 1") is being filed by Tiffany & Co.
International, a Delaware corporation ("International"), and Tiffany & Co., a
Delaware corporation ("Parent" and together with International, the "Reporting
Persons"). International is a direct wholly-owned subsidiary of Parent. This
Amendment No. 1 is being filed to amend and supplement the statement on Schedule
13D originally filed with the Securities and Exchange Commission (the "SEC") on
July 27, 1999 (the "Original 13D"), with respect to the Common Stock, no par
value (the "Common Stock"), of Aber Diamond Corporation (previously known as
Aber Resources Ltd.) (the "Issuer"). Capitalized terms used but not defined in
this Amendment No. 1 have the meanings assigned thereto in the Original 13D.
Except as disclosed in this Amendment No. 1, the information contained in the
Original 13D, has not changed as of the date hereof.
Items 4 and 6 are hereby amended and restated as set forth below and Items
2, 5 and 7 are amended to the extent set forth below:
ITEM 2. IDENTITY AND BACKGROUND.
The third paragraph of Item 2(a) - (c); (f) is hereby deleted in its
entirety and replaced with the following new paragraph:
To the best of the Reporting Persons' knowledge as of the date
hereof, the name, business address, present principal occupation or
employment and citizenship of each executive officer and director of each
Reporting Person, and the name, principal business and address of any
corporation or other organization in which such employment is conducted is
set forth on Schedules I and II hereto. The information contained in
Schedules I and II is incorporated herein by reference.
Item 2 (d) - (e) is hereby amended and restated as follows:
During the last five years, none of the Reporting Persons, their
respective executive officers or their respective directors have been
convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or were a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction resulting in a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or
finding any violation with respect to such laws.
ITEM 4. PURPOSE OF TRANSACTION.
On December 6, 2004, International entered into an Extinguishment and
Termination Agreement (the "Termination Agreement") with the Issuer to cancel
and extinguish certain provisions of the Subscription Agreement, entered into on
July 16, 1999 and previously described in the Original 13D. Pursuant to the
Termination Agreement, the Issuer agreed to cancel and extinguish certain of its
rights with respect to the sale by International of the 8,000,000 shares of
Common Stock purchased by International pursuant to the Subscription Agreement
(the "Shares"), to certain dealers (collectively, "Dealers") subject to the
satisfaction of certain conditions, described in Item 6 below.
Pursuant to the terms of the Termination Agreement, International
relinquished its right to have a representative of the Reporting Persons
nominated to the Issuer's Board of Directors at each annual meeting of
shareholders. Pursuant to the terms of the Termination Agreement, James
Fernandez resigned from the Board of Directors of the Issuer, and the Issuer is
no longer required by the Subscription Agreement to nominate a representative of
the Reporting Persons to the Issuer's Board of Directors.
On December 7, 2004, International entered into a Purchase Agreement (the
"Purchase Agreement") with Merrill Lynch Canada, Inc., CIBC World Markets Inc.,
Scotia Capital Inc. and UBS Securities Canada Inc. (collectively, "Merrill
Lynch"), pursuant to which Merrill Lynch shall acquire, subject to certain
conditions described in Item 6 below, all of the Shares at a purchase price
equal to CAN$42.00 per share (the "Stock Sale"). Upon closing of the Stock Sale
on December 10, 2004, the Reporting Persons will not own beneficially or of
record, any shares of Common Stock of the Issuer.
SCHEDULE 13D/A
CUSIP NO. 002893105 Page 5 of 9 Pages
Under the terms of the Purchase Agreement, Merrill Lynch will offer the
Shares for resale (i) in the United States to "accredited investors" (as defined
in Section 2(a)(15) of the Securities Act of 1933, as amended (the "Securities
Act")) and to "qualified institutional buyers" as defined in Rule 144A(a)(1)
under the Securities Act, (ii) in all transactions outside the United States in
reliance on Regulation S under the Securities Act ("Regulation S") and (iii) in
Canada without filing a prospectus and in compliance with Canadian securities
laws including the rules and regulations of the Toronto Stock Exchange.
The obligations of Merrill Lynch under the Purchase Agreement are subject
to certain conditions, described in Item 6 below.
All references to the Termination Agreement and Purchase Agreement set
forth in this Item 4 are qualified in their entirety by reference to the copy of
the Termination Agreement and Purchase Agreement included as Exhibits 99.1 and
99.2, respectively, to this Amendment No. 1, each of which is incorporated
herein by reference.
Except as indicated above, the Reporting Persons have no plans or
proposals which relate to or would result in any of the events, actions or
conditions specified in paragraphs (a) through (j) of Item 4 of Schedule 13D.
This Amendment No. 1 is not an offer to sell any securities or a solicitation to
buy any securities. These securities have not been, and will not be, registered
under the Securities Act and may not be offered or sold in the United States
absent registration thereunder or under an applicable exemption from such
registration requirements.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is amended and supplemented by amending paragraph (c) as follows
and adding the following new paragraph (e):
(c) On December 7, 2004, International entered into the Purchase Agreement
with Merrill Lynch, a copy of which is included as Exhibit 99.2 hereto and which
is incorporated by reference herein, pursuant to which Merrill Lynch shall
acquire, subject to certain conditions described in Item 6 below, all of the
Shares at a purchase price equal to CAN$42.00 per share. Upon closing of the
Stock Sale, the Reporting Persons will not own beneficially or of record, any
shares of Common Stock of the Issuer.
(e) Upon closing of the Stock Sale, the Reporting Persons will not own
beneficially or of record, any shares of Common Stock of the Issuer.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
The information set forth or incorporated by reference in Item 4 is hereby
incorporated by reference. Pursuant to the terms of the Termination Agreement, a
copy of which is included as Exhibit 99.1 hereto and which is incorporated
herein by reference, the Issuer agreed to cancel and extinguish certain of its
rights with respect to the sale of the Shares upon payment by International to
the Issuer of the sum of US$ 7 million (the "Extinguishment Fee"); provided,
that:
(i) such cancellation and extinguishment of certain of the
Issuer's rights under the Subscription Agreement only shall be
applicable to a sale of the Shares to or through the Dealers;
(ii) the Dealers shall have entered into an agreement with the
Issuer providing that (A) the Dealers promptly shall disclose
in reasonable detail to the Issuer the identities of the
persons who have agreed to purchase the Shares from the
Dealers (the "Ultimate Purchasers") and (B) the Dealers shall
not sell to any Ultimate Purchaser or group of Ultimate
Purchasers under common control, more than 2,000,000 of the
Shares without the Issuer's prior consent to be acknowledged
in writing; and
SCHEDULE 13D/A
CUSIP NO. 002893105 Page 6 of 9 Pages
(iii) the Board of Directors of the Issuer shall have received the
written resignation of James Fernandez as a director of the
Issuer.
Pursuant to the terms of the Purchase Agreement, a copy of which is
included as Exhibit 99.2 hereto and which is incorporated herein by reference,
Merrill Lynch shall acquire, subject to certain conditions described below, all
of the Shares at a purchase price equal to CAN$42.00 per share. Upon closing of
the Stock Sale, the Reporting Persons will not own beneficially or of record,
any shares of Common Stock of the Issuer.
Merrill Lynch will offer the Shares for resale upon the terms and
conditions set forth in the Purchase Agreement (i) in the United States to
"accredited investors" (as defined in Section 2(a)(15) of the Securities Act)
and to "qualified institutional buyers" as defined in Rule 144A(a)(1) under the
Securities Act, (ii) in all transactions outside the United States, including in
Canada, in reliance on Regulation S under the Securities Act and (iii) in Canada
without filing a prospectus and in compliance with Canadian securities laws
including the rules and regulations of the Toronto Stock Exchange.
The obligations of Merrill Lynch under the Purchase Agreement are subject
to termination in the absolute discretion of Merrill Lynch if at any time prior
to the time of purchase there shall have occurred: (i) a suspension or material
limitation in trading in securities generally on the Toronto Stock Exchange;
(ii) a suspension or material limitation in trading in the shares of common
stock of the Issuer on the Toronto Stock Exchange; (iii) a general moratorium on
commercial banking activities declared by either Canadian or Ontario authorities
or a material disruption in commercial banking or securities settlement or
clearance services in Canada; or (iv) any other calamity or crisis or any change
in financial, political or economic conditions in Canada or elsewhere, if the
effect of any such event specified in clause (iv) in the judgment of Merrill
Lynch makes it impracticable or inadvisable to proceed with the offering or the
delivery of the Shares on the terms and in the manner set forth in the Purchase
Agreement.
All references to the Termination Agreement and Purchase Agreement set
forth in this Item 6 are qualified in their entirety by reference to the copy of
the Termination Agreement and Purchase Agreement included as Exhibits 99.1 and
99.2, respectively, to this Amendment No. 1.
This Amendment No. 1 is not an offer to sell any securities or a
solicitation to buy any securities. These securities have not been, and will not
be, registered under the Securities Act and may not be offered or sold in the
United States absent registration thereunder or under an applicable exemption
from such registration requirements.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 is amended and supplemented by adding the following new exhibits:
99.1 Termination Agreement, dated as of December 6, 2004, by and between
Tiffany & Co. International and Aber Diamond Corporation.
99.2 Purchase Agreement, dated as of December 7, 2004, by and between
Tiffany & Co. International, Tiffany & Co., Merrill Lynch & Co.,
CIBC World Markets Inc., Scotia Capital Inc. and UBS Securities
Canada Inc.
SCHEDULE 13D/A
CUSIP NO. 002893105 Page 7 of 9 Pages
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
TIFFANY & CO. INTERNATIONAL
By: /s/ Patrick B. Dorsey
__________________________ December 7, 2004
Patrick B. Dorsey
Vice President and Secretary
TIFFANY & CO.
December 7, 2004
By: /s/ Patrick B. Dorsey
_________________________
Patrick B. Dorsey
Senior Vice President, General Counsel and Secretary
SCHEDULE 13D/A
CUSIP NO. 002893105 Page 8 of 9 Pages
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF TIFFANY & CO. INTERNATIONAL
The following table sets forth the name, business address and present
principal occupation or employment of each director and executive officer of
Tiffany & Co. International. Except as indicated below, each such person is a
U.S. citizen and the business address of each such person is 727 Fifth Avenue,
New York, New York 10022.
BOARD OF DIRECTORS OF TIFFANY & CO. INTERNATIONAL
Name and Title Present Principal Occupation
Michael J. Kowalski, Chairman of the Board and Chief Executive Officer,
Director Tiffany & Co.
James E. Quinn, President, Tiffany & Co.
Director
James N. Fernandez, Executive Vice President and Chief Financial Officer,
Director Tiffany & Co.
Patrick B. Dorsey, Senior Vice President, General Counsel and Secretary,
Director Tiffany & Co.
EXECUTIVE OFFICERS OF TIFFANY & CO. INTERNATIONAL
Name and Title Present Principal Occupation
Michael J. Kowalski, Chairman of the Board and Chief Executive Officer,
President Tiffany & Co.
James N. Fernandez, Executive Vice President and Chief Financial Officer,
Vice President and Tiffany & Co.
Chief Executive
Officer
Patrick B. Dorsey, Senior Vice President, General Counsel and Secretary,
Vice President and Tiffany & Co.
Secretary
James E. Quinn, President, Tiffany & Co.
Vice President
Warren S. Feld, Vice President and Controller-Tiffany and Company;
Controller Controller, Tiffany & Co.
Michael W. Connolly, Treasurer, Tiffany & Co.
Treasurer
SCHEDULE 13D/A
CUSIP NO. 002893105 Page 9 of 9 Pages
SCHEDULE II
DIRECTORS AND EXECUTIVE OFFICERS OF TIFFANY & CO.
The following table sets forth the name, business address and present
principal occupation or employment of each director and executive officer of
Tiffany & Co. Except as indicated below, each such person is a U.S. citizen and
the business address of each such person is 727 Fifth Avenue, New York, New York
10022.
BOARD OF DIRECTORS OF TIFFANY & CO.
Name and Title Present Principal Occupation
Michael J. Kowalski Chairman of the Board and Chief Executive Officer,
Tiffany & Co.
James E. Quinn President, Tiffany & Co.
Rose Marie Bravo Chief Executive of Burberry Limited. The address of
Burberry Limited is 1350 Avenue of the Americas, 30th
Floor, New York, New York 10019.
William R. Chaney Former Chairman of the Board, Tiffany & Co.
Samuel L. Hayes III Jacob H. Schiff Professor Emeritus - Harvard Business
School. The address of Harvard Business School is Cumnock
Hall 300, Harvard Business School Boston, Massachusetts
02163.
Abby F. Kohnstamm Senior Vice President, Marketing of IBM Corporation. The
address of IBM Corporation is 1133 Westchester Avenue,
White Plains, New York 10604.
Charles K. Marquis Senior Advisor to Investcorp International Inc. The
address of Investcorp International Inc. is 280 Park
Avenue, 37th Floor West, New York, New York 10017.
J. Thomas Presby Mr. Presby is active as a director, mediator, arbitrator
and business advisor. The business address for Mr.
Presby is c/o Deloitte, 1633 Broadway, New York, New York
10019-6754.
James E. Quinn President, Tiffany & Co.
William A. Shutzer Partner, Senior Managing Director - EverCore Partners.
The address of EverCore Partners is 55 East 52nd Street,
43rd Floor, New York, New York 10005.
EXECUTIVE OFFICERS OF TIFFANY & CO.
Name and Title Present Principal Occupation
Michael J. Kowalski Chairman of the Board of Directors and Chief Executive
Officer
James E. Quinn President
Beth O. Canavan Executive Vice President
James N. Fernandez Executive Vice President and Chief Financial Officer
Victoria Berger-Gross Senior Vice President -- Human Resources
Patrick B. Dorsey Senior Vice President, General Counsel and Secretary
Fernanda M. Kellogg Senior Vice President -- Public Relations
Jon M. King Senior Vice President -- Merchandising
Caroline D. Naggiar Senior Vice President -- Marketing
John S. Petterson Senior Vice President -- Operations