As filed with the Securities and Exchange Commission on October 26, 2001
File No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE TIMBERLAND COMPANY
(Exact name of registrant as specified in its charter)
| Delaware | 02-0312554 | |
| (State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
200 Domain Drive
Stratham, New Hampshire 03885
(603) 772-9500
(Address of Principal Executive Offices)
2001 Non-Employee Directors Stock Plan
(Full Title of the Plan)
JEFFREY B. SWARTZ
President and Chief Executive Officer
200 Domain Drive
Stratham, New Hampshire 03885
Telephone: (603) 772-9500
Telecopy: (603) 773-1630
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Please send copies of all communications to:
THOMAS J. WHITE, ESQ.
The Timberland Company
200 Domain Drive
Stratham, New Hampshire 03885
(603) 772-9500
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered | Amount to be Registered | Proposed Maximum Offering Price Per Share(1) | Proposed Maximum Aggregate Offering Price(1) | Amount of Registration Fee | ||||
| Class A Common Stock, par value $0.01 per share | 200,000 shares | $32.50 | $6,500,000 | $1,625 | ||||
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"), and the Instructional Note to Part I of Form S-8, the information required by Part I to be contained in the Section 10(a) prospectus has been omitted from this Registration Statement.
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Timberland Company (the "Registrant" or the "Company") hereby incorporates the following documents herein by reference:
All documents subsequently filed by the Registrant pursuant to Section 13(a), Section 13(c), Section 14 and Section 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
John E. Beard, a member of the Board of Directors of the Company, is also of counsel in the law firm of Ropes & Gray. Ropes & Gray has issued an opinion regarding the validity of the shares of Common Stock in connection with this Registration Statement.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, as amended (the "DGCL"), provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Section 145 further provides that a corporation similarly may indemnify any such person serving in any such capacity who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor, against expenses actually and reasonably incurred in connection with the defense or settlement of such action or suit if he acted in good faith and in a
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manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or such other court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation 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 DGCL (relating to unlawful payment of dividends and unlawful stock purchase and redemption), or (iv) for any transaction from which the director derived an improper personal benefit.
Section 8 of the Registrant's Restated Certificate of Incorporation, as amended, requires the Registrant to indemnify each person who is or was or has agreed to be a director or officer of the Registrant against expenses (including attorney's fees), judgments, fines, penalties and amounts paid in settlement to the maximum extent permitted from time to time under the DGCL. In addition, Section 9 provides that no director of the Registrant shall be liable for any breach of fiduciary duty, except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breach of fiduciary duty.
The Registrant maintains insurance, at its expense, to protect itself and any of its directors, officers, employees or agents covered thereby against any expense, liability or loss, subject to certain limits in coverage and deductibles, whether or not the Registrant would have the power to indemnify such person against such expense, liability or loss under the DGCL. The Registrant intends to maintain such insurance so long as such insurance is available at reasonable rates.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
| |
|
|
||
|---|---|---|---|---|
| 4.1 | (a) | Restated Certificate of Incorporation dated May 14, 1987. (1) | ||
| (b) | Certificate of Amendment of Restated Certificate of Incorporation dated May 22, 1987. (1) | |||
| (c) | Certificate of Ownership merging The Nathan Company into The Timberland Company dated July 31, 1987. (1) | |||
| (d) | Certificate of Amendment of Restated Certificate of Incorporation dated June 14, 2000. (1) | |||
| (e) | Certificate of Amendment of Restated Certificate of Incorporation dated September 27, 2001, filed herewith. | |||
| 4.2 | By-Laws, as amended February 19, 1993. (2) | |||
| 4.3 | The Timberland Company 2001 Non-Employee Directors Stock Plan, filed herewith. | |||
| 5.0 | Opinion of Ropes & Gray, filed herewith. | |||
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| 23.1 | Consent of Deloitte & Touche LLP, filed herewith. | |||
| 23.2 | Consent of Ropes & Gray (contained in the opinion filed as Exhibit 5 to this registration statement). | |||
| 24 | Power of Attorney (Included on Signature Page). | |||
Item 9. Undertakings.
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Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Stratham, the State of New Hampshire on this the 26th day of October, 2001.
| THE TIMBERLAND COMPANY | |||
By: |
/s/ JEFFREY B. SWARTZ Jeffrey B. Swartz President and Chief Executive Officer |
||
Pursuant to the requirement of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Each person whose signature appears below hereby authorizes and constitutes Brian P. McKeon, Danette Wineberg and Thomas J. White, and each of them singly, his or her true and lawful attorneys with full power to them, and each of them singly, to sign for him or her and in his or her name in the capacities indicated below any and all amendments (including post-effective amendments) to this Registration Statement and to file the same, with exhibits thereto, and other documents in connection therewith, and he or she hereby ratifies and confirms his or her signature as it may be signed by said attorneys, or any of them, to any and all such amendments.
| Signature |
Capacity in Which Signed |
Date |
||
|---|---|---|---|---|
| /s/ SIDNEY W. SWARTZ Sidney W. Swartz |
Chairman of the Board and Director | October 26, 2001 | ||
/s/ JEFFREY B. SWARTZ Jeffrey B. Swartz |
President, Chief Executive Officer and Director (Principal Executive Officer) |
October 26, 2001 |
||
/s/ BRIAN P. MCKEON Brian P. McKeon |
Chief Financial Officer and Senior Vice President—Finance and Administration |
October 26, 2001 |
||
/s/ DENNIS W. HAGELE Dennis W. Hagele |
Vice President—Finance and Corporate Controller (Chief Accounting Officer) |
October 26, 2001 |
||
/s/ ROBERT M. AGATE Robert M. Agate |
Director |
October 26, 2001 |
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/s/ JOHN E. BEARD John E. Beard |
Director |
October 26, 2001 |
||
/s/ JOHN F. BRENNAN John F. Brennan |
Director |
October 26, 2001 |
||
/s/ IAN W. DIERY Ian W. Diery |
Director |
October 26, 2001 |
||
/s/ JOHN A. FITZSIMMONS John A. Fitzsimmons |
Director |
October 26, 2001 |
||
/s/ VIRGINIA H. KENT Virginia H. Kent |
Director |
October 26, 2001 |
||
/s/ BILL SHORE Bill Shore |
Director |
October 26, 2001 |
||
/s/ ABRAHAM ZALEZNIK Abraham Zaleznik |
Director |
October 26, 2001 |
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| Number |
Title of Exhibit |
|||
|---|---|---|---|---|
| 4.1 | (a) | Restated Certificate of Incorporation dated May 14, 1987. (1) | ||
| (b) | Certificate of Amendment of Restated Certificate of Incorporation dated May 22, 1987. (1) | |||
| (c) | Certificate of Ownership merging The Nathan Company into The Timberland Company dated July 31, 1987. (1) | |||
| (d) | Certificate of Amendment of Restated Certificate of Incorporation dated June 14, 2000. (1) | |||
| (e) | Certificate of Amendment of Restated Certificate of Incorporation dated September 27, 2001, filed herewith. | |||
| 4.2 | By-Laws, as amended February 19, 1993. (2) | |||
| 4.3 | The Timberland Company 2001 Non-Employee Directors Stock Plan, filed herewith. | |||
| 5.0 | Opinion of Ropes & Gray, filed herewith. | |||
| 23.1 | Consent of Deloitte & Touche LLP, filed herewith. | |||
| 23.2 | Consent of Ropes & Gray (contained in the opinion filed as Exhibit 5 to this registration statement). | |||
| 24 | Power of Attorney (Included on Signature Page). | |||
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Exhibit 4.1(e)
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF "THE TIMBERLAND COMPANY", FILED IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF SEPTEMBER, A.D. 2001, AT 3 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE RECORDER OF DEEDS.
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
THE TIMBERLAND COMPANY
The Timberland Company, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of The Timberland Company duly adopted resolutions proposing an amendment to the Restated Certificate of Incorporation of said corporation, declaring said amendment to be advisable and directing that the following proposal approving said amendment be considered at the next annual meeting of the stockholders of said corporation:
That section 4.1 of the Restated Certificate of Incorporation of this corporation be deleted in its entirety and that there be substituted in lieu thereof a new section 4.1 which shall read in its entirety as follows:
| Name of Class |
Number of Shares |
Par Value |
|||
|---|---|---|---|---|---|
| Preferred Stock | 2,000,000 | $ | .01 | ||
| Class A Common Stock | 120,000,000 | $ | .01 | ||
| Class B Common Stock | 20,000,000 | $ | .01 | ||
SECOND: That thereafter, pursuant to the amended By-laws of said corporation the annual meeting of the stockholders was duly called and held upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware at which meeting the necessary number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, The Timberland Company has caused this certificate to be signed by Jeffrey B. Swartz, its President and attested to by Danette Wineberg, Secretary, this 27th day of September, 2001.
| THE TIMBERLAND COMPANY | |||
By: |
/s/ JEFFREY B. SWARTZ Jeffrey B. Swartz President |
||
ATTEST:
By: |
/s/ DANETTE WINEBERG Danette Wineberg Secretary |
Exhibit 4.3
THE TIMBERLAND COMPANY
2001 NON-EMPLOYEE DIRECTORS STOCK PLAN
1. Purpose. The purpose of this plan (the "Plan") is to strengthen the commonality of interest between non-employee directors and stockholders of The Timberland Company, a Delaware corporation (the "Company"), by providing for the grant to eligible directors of options to purchase shares of the Class A Common Stock, $0.01 par value (the "Stock") of the Company. The Company believes that the granting of such options will enhance its ability to attract and retain highly qualified directors, to provide additional incentives to them and to encourage the highest level of performance by them by offering them a proprietary interest in the Company.
2. Effective Date. The Plan was adopted by the Board of Directors of the Company (the "Board") on December 7, 2000 and the Plan will become effective on the date on which the Plan is approved by the stockholders of the Company.
3. Stock Covered By The Plan. Subject to adjustment as provided for in Section 8, the aggregate number of shares of Stock which may be issued and sold pursuant to options granted under the Plan shall not exceed 200,000 shares. Shares of Stock issued under the Plan may be either authorized but unissued shares or treasury shares. If any option granted under the Plan terminates or expires without being fully exercised, the shares which have not been purchased thereunder will again become available for purposes of the Plan.
4. Administration. The Plan will be administered by the Board or its delegate, whose construction and interpretation of the terms and provisions of the Plan and of options under the Plan shall be final and conclusive.
5. Formula Option Grants. For purposes of the Plan, an individual is an "Eligible Director" if he or she (i) is a member of the Board, and (ii) is not an employee of the Company or any of its subsidiaries. Each Eligible Director shall be automatically granted an option (the "Initial Award") to purchase 10,000 shares of Stock (subject to adjustment as provided in Section 8 hereof) on the date that he or she is first elected or named a director of the Company. On each anniversary of his or her Initial Award, the Eligible Director, if then still in office, shall be awarded an additional option (an "Annual Award") to purchase 2,500 shares of Stock. For purposes of applying the immediately preceding sentence, any initial award of stock options under the Company's 1991 Stock Option Plan for Non-Employee Directors (the "Predecessor Plan") shall be treated as an "Initial Award."
6. Option Price. The price per share at which each option granted under the Plan to an Eligible Director may be exercised ("Option Price") shall be the fair market value of a share of Stock at the time of grant of the Option. For this purpose, "fair market value" shall mean the closing price of the Stock as reported on the New York Stock Exchange (or other exchange or market system if no longer listed on such exchange) on the date of the grant (based on The Wall Street Journal report of composite transactions).
7. Terms And Conditions Of Options. Each option granted under the Plan shall be subject to the following terms and conditions in addition to such other terms and conditions, if any, as the Board may prescribe:
(a) Exercise of Options. Subject to subsection (e) below, each option shall expire ten (10) years from the date of grant of such option and shall be exercisable prior to such expiration date (the "Final Exercise Date") in cumulative installments as to one-quarter (25%) of the shares subject to the option on each of the first, second, third and fourth anniversaries of the date of grant (each, a "vesting date"); provided, that if the Eligible Director first was elected or named to the Board at an annual meeting of stockholders of the Company, the vesting dates with respect to the Eligible Director's Initial Award (if made under this Plan) or with respect to any subsequent Annual Award to the Eligible Director
under this Plan shall be the dates that immediately precede the dates of the annual meetings of stockholders of the Company occurring in the years in which fall the first, second, third and fourth anniversaries of the date of grant of the option.
(b) Payment. An option may be exercised from time to time in writing, signed by the proper person, in whole or in part, during the period that it is exercisable, by payment of the Option Price of each share purchased, in cash, or by delivery to the Company of a number of shares of unrestricted Stock (provided that any shares acquired directly from the Company shall have been held by the Eligible Director for at least six (6) months before such delivery) having an aggregate fair market value equal to the aggregate Option Price. Payment of the Option Price may also be made by the delivery of an unconditional and irrevocable undertaking by a broker acceptable to the Company to deliver promptly to the Company sufficient funds to pay the Option Price, or by any combination of the foregoing permissible forms of payment.
(c) Certain Restrictions. The Company shall not be obligated to deliver any shares of Stock (i) until, in the opinion of the Company's counsel, all applicable federal and state laws and regulations have been complied with, and (ii) if the outstanding Stock is at the time listed on any stock exchange, until the shares to be delivered have been listed or authorized to be listed on such exchange upon official notice of issuance, and (iii) until all other legal matters in connection with the issuance and delivery of such shares have been approved by the Company's counsel. If the sale of Stock has not been registered under the Securities Act of 1933, as amended, the Company may require, as a condition to exercise of the option, such representations or agreements as counsel for the Company may consider appropriate to avoid violation of such Act and may require that the certificates evidencing such Stock bear an appropriate legend restricting transfer.
(d) Non-Transferability. Unless the Board provides otherwise, options granted under the Plan shall not be transferable by the optionee other than by will or by the laws of descent and distribution.
(e) Termination of Directorship.
(i) Death. Upon the death of an Eligible Director granted options under the Plan, all options that immediately prior to death were held by the director and were not then exercisable shall terminate. All options held by the director immediately prior to death that were then exercisable may be exercised by his or her executor or administrator, or by the person or persons to whom the option is transferred by will or the applicable laws of descent and distribution, at any time within three (3) years after the director's death (but in no event after the Final Exercise Date) and shall then terminate.
(ii) Other Termination of Status of Director. If a director's service with the Company as a director terminates for any reason other than death, all options held by the director that are not then exercisable shall terminate. Options that are exercisable on the date of termination shall continue to be exercisable for a period of three (3) months (but in no event after the Final Exercise Date) and shall then terminate; provided, that if the director's service with the Company as a director terminates under circumstances which in the opinion of the Board cast such discredit on the individual as to justify termination of the individual's options, all of the individual's options shall immediately terminate.
8. Adjustment Provisions.
(a) Recapitalizations. In the event of a stock dividend, stock split or combination of shares, recapitalization or other change in the Company's capital structure, the Board will make appropriate adjustments to the maximum number of shares that may be delivered under the Plan under Section 3 and to the number and kind of shares of stock or securities subject to options then outstanding or subsequently granted, any exercise prices relating to options and any other provision of options affected by such change. The Board may also make
adjustments of the type described in the preceding sentence to take into account distributions to common stockholders other than those provided for in such sentence (or in Section 8(b)), or any other event, if the Board determines that adjustments are appropriate to avoid distortion in the operation of the Plan and to preserve the value of options made hereunder. References in the Plan to shares of Stock shall be construed to include any stock or securities resulting from an adjustment pursuant to this subsection.
(b) Mergers, etc. In the event of any merger or consolidation involving the Company, any sale of substantially all of the Company's assets or any other transaction or series of related transactions as a result of which a single person or several persons acting in concert own a majority of the Company's then outstanding stock (such merger, consolidation, sale or other transaction being hereinafter referred to as a ("Transaction"), all outstanding options shall become exercisable prior to the consummation of such Transaction, such options shall be exercisable at such time as the Board determines and in no event for less than a period of at least 20 days prior to the consummation of such Transaction, but only to the extent the Board determines it may do so in accordance with the applicable requirements of Rule 16b-3 of the Securities Exchange Act of 1934. Upon consummation of the Transaction, all outstanding options not so exercised shall terminate and cease to be exercisable. There shall be excluded from the foregoing any Transaction as a result of which (i) the holders of Stock prior to the Transaction retain or acquire securities constituting a majority of the outstanding voting common stock of the acquiring or surviving corporation or other entity and (ii) no single person owns more than half of the outstanding voting common stock of the acquiring or surviving corporation or other entity. For purposes of this Section, voting common stock of the acquiring or surviving corporation or other entity that is issuable upon conversion of convertible securities or upon exercise of warrants or options shall be considered outstanding, and all securities that vote in the election of directors (other than solely as the result of a default in the making of any dividend or other payment) shall be deemed to constitute that number of shares of voting common stock which is equivalent to the number of such votes that may be cast by the holders of such securities.
9. Amendment Of The Plan. The Board may at any time amend or discontinue the Plan and may at any time amend or cancel any outstanding option for the purpose of satisfying changes in law or for any other lawful purpose, but no such action shall adversely affect rights under any outstanding option without the holder's consent.
10. Limitation Of Rights. Nothing in the Plan shall confer upon any Eligible Director the right to continue as a director of the Company.
11. Notice. Any written notice to the Company required by any of the provisions of the Plan shall be addressed to the Chief Financial Officer of the Company and shall become effective when it is received.
12. Effective Date And Duration Of The Plan. The Plan shall become effective upon approval by the stockholders of the Company. Amendments to the Plan shall become effective when adopted by the Board. Unless earlier terminated pursuant to Section 9, the Plan shall terminate upon the date on which all shares available for issuance under the Plan shall have been issued pursuant to the exercise of options granted under the Plan.
Exhibit 5.0
[ROPES & GRAY LETTERHEAD]
October 22, 2001
The
Timberland Company
200 Domain Drive
Stratham, New Hampshire 03885
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended, for the registration of 200,000 shares of Class A Common Stock, $0.01 par value per share (the "Shares"), of The Timberland Company, a Delaware corporation (the "Company").
We have acted as counsel to the Company and are familiar with the actions taken by the Company in connection with the Company's 2001 Non-Employee Directors Stock Plan (the "Plan"). For purposes of this opinion we have examined the Plan and such other documents as we deemed appropriate.
Based upon the foregoing, we are of the opinion that the Shares have been duly authorized and when the Shares have been issued and sold and consideration received therefor by the Company in accordance with the terms of the Plan, they will be validly issued, fully paid and nonassessable.
We hereby consent to your filing this opinion as an exhibit to the Registration Statement.
Very
truly yours,
/S/ Ropes & Gray
Ropes & Gray
Exhibit 23.1
We consent to the incorporation by reference in this Registration Statement of The Timberland Company on Form S-8 of our reports dated January 31, 2001, appearing in the Annual Report on Form 10-K of The Timberland Company and its subsidiaries for the year ended December 31, 2000.
/s/
Deloitte & Touche LLP
Boston, Massachusetts
October 23, 2001