UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT
(DATE OF EARLIEST EVENT REPORTED):
September 13, 2011
THE TIMBERLAND COMPANY
(Exact name of registrant as specified in its charter)
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DELAWARE |
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1-9548 |
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02-0312554 |
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(State or other jurisdiction of |
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(Commission file number) |
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(IRS employer identification |
200 DOMAIN DRIVE
STRATHAM, NH 03885
(Address of Principal Executive Offices) (Zip Code)
Registrant’s telephone number, including area code:
(603) 772-9500
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.02 Termination of Material Definitive Agreement
On September 13, 2011, and in connection with the Merger (as defined below), The Timberland Company (the “Company”) terminated the Second Amended and Restated Revolving Credit Agreement dated as of June 2, 2006 among the Company, certain banks listed therein and Bank of America, N.A., as administrative agent (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). No early termination penalties were incurred by the Company in connection with the termination of the Credit Agreement.
Item 2.01 Completion of Acquisition or Disposition of Assets.
On September 13, 2011, the Company completed the merger contemplated by the Agreement and Plan of Merger (the “Merger Agreement”), dated as of June 12, 2011, among the Company, V.F. Corporation, a Pennsylvania corporation (“Parent”) and VF Enterprises, Inc., a Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub”). Pursuant to the Merger Agreement, the Company was acquired by Parent through a merger of Merger Sub with and into the Company (the “Merger”).
Merger Agreement
Pursuant to the Merger Agreement, Merger Sub merged with and into the Company, and the Company will continue as the surviving corporation (the “Surviving Corporation”) and as a wholly-owned subsidiary of Parent.
Under the Merger Agreement, each outstanding share of the Company’s Class A and Class B common stock, par value $0.01 per share (the “Company Common Stock”), was converted into the right to receive $43.00 in cash (the “Merger Consideration”), other than those shares of the Company Common Stock held by stockholders who were entitled to and who properly exercised, and do not withdraw or lose, their appraisal rights under Section 262 of the General Corporation Law of the State of Delaware (the “DGCL”) and shares in the treasury of the Company or held by Parent or any direct or indirect subsidiary of the Company or Parent immediately prior to the effective time of the Merger (the “Effective Time”). In addition, each outstanding option to purchase shares of Company Common Stock at the Effective Time was canceled, and each holder thereof is entitled to receive a cash payment equal to the excess of $43.00 over the per share exercise price for such option multiplied by the number of shares subject to such option, less any required withholding taxes. Outstanding shares of Company Common Stock granted subject to vesting or other restrictions pursuant to any stock plan or contract of the Company’s vested and became free of such restrictions in exchange for a cash payment equal to $43.00, less any required withholding taxes, and each outstanding restricted stock unit and performance stock unit granted subject to vesting or other restrictions pursuant to any stock plan or contract of the Company’s, other than the Company’s 1991 Employee Stock Purchase Plan, vested and became free of such restrictions in consideration for a cash payment equal to $43.00, less any required withholding taxes, multiplied by the number of shares subject to such restricted stock unit or performance stock unit.
The foregoing description of the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is qualified in its entirety by the Merger Agreement, a copy of which was attached as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the SEC on June 13, 2011, and is incorporated herein by reference.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
On September 13, 2011, in connection with the Merger, the Company notified the New York Stock Exchange (the “NYSE”) that the Merger has been completed, and requested that trading of the Company’s Class A common stock on the NYSE be suspended prior to the opening of trading on September 14, 2011. In addition, the Company requested that the NYSE file with the Securities and Exchange Commission (the “SEC”) an application on Form 25 to delist and deregister the Company’s Class A common stock on September 14, 2011.
In addition, the Company intends to file with the SEC a certification and notice of termination with respect to the Company’s Class A common stock on Form 15, requesting that the Company’s Class A common stock be deregistered under Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and that the reporting obligations of the Company with respect to the Company’s Class A common stock under Sections 13(a) and 15(d) of the Exchange Act be suspended.
The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated in this Item by reference.
Item 3.03 Material Modification to Rights of Security Holders.
As described in Item 2.01, as a result of the Merger, each remaining share of Company Common Stock (except for shares held by Parent, the Company, subsidiaries of either Parent or the Company, and stockholders who properly exercised and do not withdraw their appraisal rights under Section 262 of the DGCL with respect to such shares) was converted into the right to receive the Merger Consideration. At the Effective Time, the Company’s stockholders immediately prior to the Effective Time ceased to have any rights as stockholders in the Company (other than the right to receive the Merger Consideration) and accordingly no longer have any interest in the Company’s future earnings or growth.
The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated in this Item by reference.
Item 5.01 Changes in Control of Registrant.
As described in Item 2.01, on September 13, 2011, pursuant to the terms of the Merger Agreement, the acquisition of the Company by Parent through the merger of Merger Sub with and into the Company was consummated, resulting in a change of control of the Company.
The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated into this Item by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Pursuant to the Merger Agreement, at the Effective Time of the Merger the sole director of Merger Sub immediately prior to the Effective Time became the sole director of the Surviving Corporation. In connection therewith, each of Catherine E. Buggeln, Andre J. Hawaux, Kenneth T. Lombard, Edward W. Moneypenny, Peter R. Moore, Bill Shore, Sidney W. Swartz and Terdema L. Ussery, II resigned from the Company’s board of directors and Jeffrey B. Swartz resigned from the Company’s board of directors and his positions as President and Chief Executive Officer of the Company. Also at the Effective Time, the officers of the Company other than Jeffrey B. Swartz became the officers of the Surviving Corporation, in each case until their respective successors are duly elected or appointed and qualified or until the earlier of their death, resignation or removal. In addition, immediately following the Effective Time, Steven E. Rendle, Vice President and Group President — Outdoor & Action Sports Americas of Parent, was appointed as interim President and Chief Executive Officer of the Company. Mr. Rendle’s biographical information is contained under the heading “Executive Officers of VF” in Part I, Item 1 of the Annual Report on Form 10-K for Parent filed on March 2, 2011.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On September 13, 2011, the Company’s certificate of incorporation and by-laws were amended and restated to be identical to the certificate of incorporation and by-laws of Merger Sub, other than the name of the corporation, which remained The Timberland Company, and the provisions relating to indemnification and exculpation of, and advancement of expenses to, the Company’s officers and directors, which are consistent with the corresponding provisions of the Company’s certificate of incorporation and by-laws. The amended and restated certificate of incorporation of the Company and the Company’s amended by-laws are attached to this Current Report on Form 8-K as Exhibits 3.1 and 3.2.
Item 7.01 Regulation FD Disclosure.
On September 13, 2011, Parent issued a press release announcing the completion of the Merger. A copy of the press release is furnished as Exhibit 99.1.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits:
3.1 Amended and Restated Certificate of Incorporation of the Company
3.2 Amended By-Laws of the Company
99.1 Press release dated as of September 13, 2011, issued by V.F. Corporation, regarding the completion of the Merger
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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THE TIMBERLAND COMPANY | |
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Date: September 13, 2011 |
By: |
/s/ Carrie W. Teffner |
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Name: Carrie W. Teffner |
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Title: Chief Financial Officer |
Exhibit 3.1
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
THE TIMBERLAND COMPANY
FIRST: The name of the corporation (hereinafter called the “Corporation”) is The Timberland Company.
SECOND: The address, including street, number, city, and county, of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road, Suite 400, City of Wilmington 19808, County of New Castle; and the name of the registered agent of the Corporation in the State of Delaware at such address is Corporation Service Company.
THIRD: The purpose or purposes of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand (1,000), par value $.01 per share. All such shares are of one class and are shares of Common Stock.
FIFTH: The Board of Directors shall have the authority to adopt, amend or repeal the By-Laws of the Corporation.
SIXTH: The Corporation shall indemnify each person who is or was or has agreed to be a director or officer of the Corporation against expenses (including attorney’s fees and expenses), judgments, fines, penalties and amounts paid in settlement in connection with defending, investigating, preparing to defend or being or preparing to be a witness in any threatened, pending or completed action, suit, proceeding or claim, whether civil, criminal, administrative or investigative, to the maximum extent permitted from time to time under the law of the State of Delaware. Such indemnification shall not be exclusive of other indemnification rights arising under any by-law, contract, agreement, vote, directors or stockholders or otherwise and shall inure to the benefit of the heirs and legal representatives of such person.
SEVENTH: Except to the extent that the General Corporation Law of Delaware prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the corporation shall be liable for any breach of fiduciary duty. No amendment to or repeal of this Article Seventh shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment.
EIGHTH: The Corporation is to have perpetual existence.
Exhibit 3.2
THE TIMBERLAND COMPANY
BY-LAWS
ARTICLE 1
OFFICES
Section 1.01. The registered office shall be located in the State of Delaware, City of Wilmington, County of New Castle.
Section 1.02. The corporation may also have offices at such other places both within and without the State of Delaware as the board of directors may from time to time determine or the business of the corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.01 All meetings of the stockholders shall be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2.02 A meeting of stockholders shall be held each year for the election of directors at such time and place as the board of directors shall determine. Any other proper business, notice of which was given in the notice of the meeting or in a duly executed waiver of notice thereof, may be transacted at the annual meeting.
Section 2.03 Unless otherwise provided by law, written notice of the annual meeting shall be given to each stockholder entitled to vote thereat not less than ten nor more than sixty days before the date of the meeting.
Section 2.04 The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every election of directors, a complete list of the stockholders entitled to vote at said election, arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder during ordinary business hours, for a period of at least ten days prior to the election, either at a place within the city, town or village where the election is to be held and which place shall be specified in the notice of the meeting, or, if not specified, at the place where said meeting is to be held, and the list shall be produced and kept at the time and place of election during the whole time thereof, and subject to the inspection of any stockholder who may be present.
Section 2.05 Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting.
Section 2.06 Unless otherwise provided by law, written notice of a special meeting of stockholders, stating the time, place and object thereof, shall be given to each stockholder entitled to vote thereat, not less than ten nor more than sixty days before the date fixed for the meeting.
Section 2.07 Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.
Section 2.08 The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified.
Section 2.09 When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question requires a different vote by express provision of the statutes or of the certificate of incorporation, in which case such express provision shall govern and control the decision of such question.
Section 2.10 Each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period, and, except where the transfer books of the corporation have been closed or a date has been fixed as a record date for the determination of its stockholders entitled to vote, no share of stock shall be voted on at any election for directors which has been transferred on the books of the corporation within twenty days next preceding such election of directors.
Section 2.11 Any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
ARTICLE 3
DIRECTORS
Section 3.01 The number of directors which shall constitute the whole board shall be determined by the board of directors from time to time, and shall be no less than one and no more than seven. Except as hereinafter provided in Section 3.02 of this Article, the directors, other than those constituting the first board of directors, shall be elected by the stockholders, and each director shall hold office his successor is elected and qualified or until such director’s earlier resignation and removal. Directors need not be stockholders.
Section 3.02 Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director.
Section 3.03 The business of the corporation shall be managed by its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by the by-laws directed or required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 3.04 The board of directors may hold meetings, both regular and special, either within or without the State of Delaware.
Section 3.05 An annual meeting of the newly elected board of directors shall be held immediately after and at the same place as the meeting of stockholders at which the board of directors was elected, and no notice of such meeting shall be necessary to the newly elected directors in order to legally constitute the meeting, provided a quorum shall be present. Unless otherwise restricted by the certificate of incorporation or these by-laws, an annual meeting of the board of directors shall not be necessary if there are no changes to be made to the then current slate of officers of the corporation and there is no such other business to be brought before the directors.
Section 3.06 Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board.
Section 3.07 Special meetings of the board may be called by the president on two days notice to each director, either personally or by mail or by telegram; special meetings shall be
called by the president or secretary in like manner and on like notice on the written request of two directors.
Section 3.08 At all meetings of the board, a majority of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 3.09 Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or any committee thereof may be taken without a meeting, if all members of the board or of such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee.
COMMITTEES OF DIRECTORS
Section 3.10 The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the power and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution or amending the bylaws of the corporation; and, unless the resolution expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger pursuant to Section 253 of Title 8 of the Delaware Code.
Section 3.11 Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.
COMPENSATION OF DIRECTORS
Section 3.12 The compensation, if any, of directors shall be fixed by the board of directors.
PARTICIPATION IN MEETING BY TELEPHONE
Section 3.13 Members of the board of directors or any committee designated by such board may participate in a meeting of the board or of a committee of the board by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this subsection shall constitute presence in person at such meeting.
ARTICLE 4
NOTICES
Section 4.01 Notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. Notice to directors may also be given by telegram.
Section 4.02 Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or by these by-laws, a waiver thereof in writing, signed by the person or person entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholder, directors, or members of a committee of directors need to be specified in any written waiver of notice.
ARTICLE 5
OFFICERS
Section 5.01 The officers of the corporation shall be chosen by the board of directors and shall be a president, vice president (which may be an executive vice president), a secretary and a treasurer, or in the absence of a treasurer, a financial officer whose title may be, but is not limited to, controller or vice president — finance. The board of directors may also choose a chairman, additional vice presidents, a chief financial officer and one or more assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation otherwise provides.
Section 5.02 The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board.
Section 5.03 The salaries, if any, of all officers and agents of the corporation shall be fixed by the board of directors.
Section 5.04 The officers of the corporation shall hold office until their successors are chosen and qualified. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors.
THE PRESIDENT
Section 5.05 The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect.
Section 5.06 The president shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation.
THE VICE PRESIDENTS
Section 5.07 The vice president (including any executive vice president), or if there shall be more than one, the vice presidents, in order of seniority or in any other order determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe.
THE SECRETARY OR ASSISTANT SECRETARIES
Section 5.08 The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president. The secretary shall have custody of the corporate seal of the corporation and shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature.
Section 5.09 The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe.
THE CHIEF FINANCIAL OFFICER, TREASURER AND ASSISTANT TREASURERS
Section 5.10 The treasurer shall be the chief financial officer of the corporation and shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors.
Section 5.11 The treasurer shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors at its regular meetings or when the board of directors so requires, an account of all his transactions and of the financial condition of the corporation.
Section 5.12 If required by the board of directors, the treasurer shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the office and for the restoration to the corporation, in case of the treasurer’s death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation.
Section 5.13 The assistant treasurer, or if there shall be more than one, the assistant treasurers, in the order determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe.
ARTICLE 6
CERTIFICATES OF STOCK
Section 6.01 Every holder of stock in the corporation shall be entitled to have a certificate signed by, or in the name of the corporation by, the chairman or vice chairman of the board of directors, or president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by such holder.
Section 6.02 Where a certificate is signed (a) by a transfer agent or an assistant transfer agent or (b) by a transfer clerk acting on behalf of the corporation and a registrar, the signature of any such chairman or vice chairman of the board of directors, president, vice president, treasurer, assistant treasurer, secretary or assistant secretary may be facsimile. In case any officer or officers who have signed, or whose facsimile signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the corporation, whether because of death, resignation or otherwise, before such certificate or certificates have been delivered by the corporation, such certificate or certificates may nevertheless be adopted by the corporation and be issued and delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the corporation.
LOST CERTIFICATES
Section 6.03 The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed upon the issuance of such new certificate.
TRANSFERS OF STOCK
Section 6.04 Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transactions upon its books, unless the corporation has a duty to inquire as to adverse claims with respect to such transfer which has not been discharged. The corporation shall have no duty to inquire into adverse claims with respect to such transfer unless (a) the corporation has received a written notification of an adverse claim at a time and in a manner which affords the corporation a reasonable opportunity to act on it prior to the issuance of a new, reissued or re-registered share certificate and the notification identifies the claimant, the registered owner and the issue of which the share or shares is a part and provides an address for communications directed to the claimant; or (b) the corporation has required and obtained, with respect to a fiduciary, a copy of a will, trust indenture, articles of co-partnership, by-laws or other controlling instruments, for a purpose other than to obtain appropriate evidence of the appointment or incumbency of the fiduciary, and such documents indicate, upon reasonable inspection, the existence of an adverse claim.
Section 6.05 The corporation may discharge any duty of inquiry by any reasonable means, including notifying an adverse claimant by registered or certified mail at the address furnished by him, or if there be no such address, at his residence or regular place of business that the security has been presented for registration of transfer by a named person, and that the transfer will be registered unless within thirty days from the date of mailing the notification, either (a) an appropriate restraining order, injunction or other process issues from a court of competent jurisdiction; or (b) an indemnity bond, sufficient in the corporation’s judgment to protect the corporation and any transfer agent, registrar or other agent of the corporation involved from any loss which it or they may suffer by complying with the adverse claim, is filed with the corporation.
FIXING RECORD DATE
Section 6.06 (a) In order that the corporation may determine the stockholders entitled to notice or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment or any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action.
(b) If no record date is fixed:
(i) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.
(ii) The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be on the day on which the first written consent is expressed.
(iii) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6.07 Prior to due presentment for transfer of any share or shares, the corporation shall treat the registered owner thereof as the person exclusively entitled to vote, to receive notifications and to all other benefits of ownership with respect to such share or shares and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the party of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE 7
GENERAL PROVISIONS
DIVIDENDS
Section 7.01 Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation.
Section 7.02 Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors may modify or abolish any such reserve in the manner in which it was created.
ANNUAL STATEMENT
Section 7.03 The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation.
CHECKS
Section 7.04 All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other persons as the board of directors may from time to time delegate.
FISCAL YEAR
Section 7.05 The fiscal year of the corporation shall be as determined by the board to directors.
SEAL
Section 7.06 The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced.
ARTICLE 8
AMENDMENTS
Section 8.01 These by-laws may be altered or repealed at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration or repeal be contained in the notice of such special meeting.
ARTICLE 9
INDEMNIFICATION
Section 9.01 The corporation shall indemnify each person who is an existing, former or prospective director, officer or fiduciary of: (a) this corporation; or (b) another organization (provided he serves such other organization in such capacity at the behest of this corporation) against expenses (including attorneys’ fees and expenses), judgments, fines, penalties and amounts paid in settlement in connection with defending, investigating, preparing to defend or being or preparing to be a witness in any threatened, pending or completed action, suit, proceeding or claim (whether civil, criminal, administrative or investigative), to the maximum extent permitted from time to time under Delaware law. The foregoing right of indemnification shall be in addition to any rights which any such director, officer or fiduciary may otherwise be entitled and shall inure to the benefit of the heirs and legal representatives of such director, officer or fiduciary. The corporation may, subject to the approval of the board of directors, pay the expenses incurred by such director, officer or fiduciary in defending a civil or criminal action, suit or proceeding in advance of the final disposition of such action, suit, or proceeding, upon receipt of an undertaking by the person indemnified to repay such payment if he shall be adjudicated to be not entitled to indemnification as provided herein.
Exhibit 99.1
FINAL
VF COMPLETES ACQUISITION OF THE TIMBERLAND COMPANY
Transformative Acquisition Creates $10 Billion Apparel & Footwear Powerhouse
Anchored in Outdoor & Action Sports
Acquisition Expected to add $700 Million to Revenues and $.45* to EPS in 2011
New Leadership Structure Announced
*excluding acquisition related expenses
Greensboro, NC — September 13, 2011 — VF Corporation (NYSE: VFC), a global leader in branded lifestyle apparel, announced today that it has completed its previously announced acquisition of The Timberland Company (“Timberland”) for $43 per share and a total consideration of $2.3 billion.
With $1.4 billion in revenues in 2010, Timberland, a global, growing outdoor footwear and apparel company based in Stratham, N.H., will become part of VF’s Outdoor & Action Sports coalition. Timberland and Smartwool will remain headquartered in Stratham and Steamboat Springs, Colorado, respectively.
“This is a tremendously exciting day for VF. We are delighted to officially welcome Timberland® and Smartwool® to VF’s family of brands,” said Eric Wiseman, VF Chairman and Chief Executive Officer. “This acquisition strengthens VF’s position within the outdoor industry by adding two strong, global, and authentic brands with significant momentum and growth opportunities. VF is committed to helping the Timberland® and Smartwool® brands reach their global growth potential, while maintaining each brand’s unique essence.”
“Today marks the beginning of a very exciting chapter for Timberland,” said Jeff Swartz, former Timberland President and Chief Executive Officer. “I am confident that while our ownership structure has changed, what makes Timberland unique and special will not. VF has an enviable track record of allowing its brands to execute their distinct strategic visions. This is the right time to take the Timberland® and Smartwool® brands to the next level, and VF - which is as passionate about building brands as we are - is the right partner for us.”
The Timberland acquisition is expected to be immediately accretive to VF’s earnings per share, by approximately $.45 in 2011, excluding acquisition related expenses. Inclusive of these expenses, the earnings accretion would be about $.25 per share. It is also expected to add about $700 million to VF’s 2011 revenues.
VF has completed its acquisition financing with the issuance on August 24th of $400 million in floating rate notes due 2013 and $500 million of 3.5% notes due 2021. The balance of the acquisition price has been funded through a combination of cash on hand and commercial paper.
New Leadership Structure
Patrik Frisk, 48, who has been serving since 2009 as President, VF Outdoor & Action Sports EMEA, has been named President of Timberland. He will report to Steve Rendle, Group President, VF Outdoor & Action Sports Americas. In his new role, Patrik will serve as the global leader for the Timberland® brand, working in partnership with international leaders across both Europe and Asia to deliver the brand’s full growth potential. He will be relocating to the Stratham area in the near future.
Richard O’Rourke, 58, will continue as Senior Vice President, International, with responsibility for the Timberland® brand in the EMEA and Asia and for global distributors. O’Rourke will continue to be based in Wexham, U.K., and will report to Karl Heinz Salzburger, Group President, VF International.
Mark Satkiewcz, 43, will continue to lead Smartwool as President of Smartwool Americas, and remain in Steamboat Springs. He will also report to Rendle.
Each of these leaders will be supported by strong teams of well-established leaders within the Timberland and Smartwool organizations.
Additionally, Carden Welsh, Senior Vice President & Chief Administrative Officer and a member of Timberland’s Board of Directors, who has provided critical insight and strategic direction to the company for the past four years, has agreed to stay through December. He will serve as an Executive Advisor to both Rendle and Frisk.
Jeff Swartz is leaving Timberland to pursue other interests. In addition to Swartz, there are two other departures from the company. Carrie Teffner, Vice President and Chief Financial Officer, who has been with Timberland since 2009, will leave the company in September. Danette Wineberg, Vice President, General Counsel and Secretary, is also departing this month, following a 14-year career with the company.
“The Swartz family and the company’s leadership team have built strong outdoor brands that share an equally strong commitment to their people, their communities and the environment,” Wiseman said. “We thank Jeff, Carrie and Danette for their leadership and all they have done for Timberland, and we wish them great success in the future.”
Rendle commented: “We are fortunate to have such a broad and diverse base of exceptional talent within both the Timberland and Smartwool organizations. Combined with the substantial global resources of VF, we have a winning formula for growth.” Added Salzburger, “With over half its revenues coming from international markets, Timberland is already well-positioned as a global brand. We look forward to leveraging VF’s platforms in both Europe and Asia to drive both the Timberland and Smartwool businesses to new heights.”
Statement on Forward Looking Statements
Certain statements included in this release are “forward-looking statements” within the meaning of the federal securities laws. Forward-looking statements are made based on our expectations and beliefs concerning future events impacting VF and therefore involve a number of risks and uncertainties. We caution that forward-looking statements are not guarantees and that actual results could differ
materially from those expressed or implied in the forward-looking statements. Potential risks and uncertainties that could cause the actual results of operations or financial condition of VF to differ materially from those expressed or implied by forward-looking statements in this release include the overall level of consumer demand for apparel; the level of consumer confidence; VF’s ability to successfully integrate and grow acquisitions; fluctuations in the price, availability and quality of raw materials and contracted products; disruption and volatility in the global capital and credit markets; VF’s reliance on a small number of large customers; the financial strength of VF’s customers; changing fashion trends and consumer demand; increasing pressure on margins; VF’s ability to implement its growth strategy; VF’s ability to grow its international and direct-to-consumer businesses; VF’s ability to maintain the strength and security of its information technology systems; stability of VF’s manufacturing facilities and foreign suppliers; continued use by VF’s suppliers of ethical business practices; VF’s ability to accurately forecast demand for products; continuity of members of VF’s management; VF’s ability to protect trademarks and other intellectual property rights; maintenance by VF’s licensees and distributors of the value of VF’s brands; foreign currency fluctuations; and legal, regulatory, political and economic risks in international markets. More information on potential factors that could affect VF’s financial results is included from time to time in VF’s public reports filed with the Securities and Exchange Commission, including VF’s Annual Report on Form 10-K and Quarterly Reports on Form 10-Q.
About VF
VF Corporation is a global leader in branded lifestyle apparel with more than 30 brands, including Wranglerâ, The North Faceâ, Timberlandâ, Leeâ, Vansâ, Nauticaâ, 7 For All Mankindâ, Eagle Creekâ, Eastpakâ, Ella Mossâ, JanSportâ, John Varvatosâ, Kiplingâ, lucyâ, Majesticâ, Napapijriâ, Red Kapâ, Reefâ, Ridersâ , Smartwoolâ and Splendidâ.
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Contacts:
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Financial Community: |
Cindy Knoebel, CFA |
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VP, Corporate Relations |
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VF Services |
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(212) 841-7141/(336) 424-6189 |
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cindy_knoebel@vfc.com |
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Media: |
Carole Crosslin |
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Director, Corporate Communications |
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(336) 424-7836 |
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carole_crosslin@vfc.com |