<PAGE> 1
As filed with the Commission on __________________, 1995 File No. 33-_________
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 (IRS Employer
Incorporation or Organization) Identification No.)
200 Domain Drive
Stratham, New Hampshire
----------------------------------------------------------------------
(Address of Principal Executive Office, including Zip Code)
1991 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
(Full Title of the Plan)
Sidney W. Swartz
The Timberland Company
200 Domain Drive
Stratham, New Hampshire 03885
(603) 772-9500
----------------------------------------------------------------------
(Name, Address and Telephone Number of Agent for Service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
Title of Amount Proposed Proposed Amount of
Securities to be maximum maximum Registration
to be registered offering aggregate fee
registered price per offering
share1 price1
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, 100,000 shares $23.00 $2,300,000.00 $794.00
$0.01 par value
- ---------------------------------------------------------------------------------------------------------------
- -----------------------------
<FN>
1 Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(h) on the
basis of the average of the high and low prices of the Class A Common Stock of The Timberland Company as
reported on the New York Stock Exchange on June 14, 1995.
</TABLE>
Exhibit Index appears on page 6.
<PAGE> 2
REGISTRATION OF ADDITIONAL SECURITIES
The Timberland Company (the "Company" or "Registrant") hereby incorporates by
reference the contents of the Registrant's Registration Statement on Form S-8,
File number 33-41660. The purpose of this Registration Statement is to
register an additional 100,000 shares of the Company's Class A Common stock for
issuance under the Company's 1991 Employee Stock Purchase Plan.
<TABLE>
ITEM 8. EXHIBITS
--------
<CAPTION>
EXHIBIT
<S> <C>
4. Copy of The Timberland Company's 1991 Employee Stock Purchase Plan, as amended to
date.
5. Opinion of Ropes & Gray.
23.1 Consent of Deloitte & Touche
23.2 Consent of Ropes & Gray (contained in Exhibit 5).
24. Power of Attorney (included in Part II of the Registration Statement under the
caption "signatures").
</TABLE>
ITEM 9. UNDERTAKINGS.
------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
-2-
<PAGE> 3
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if
the information required to be included in the post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to
the Securities and Exchange Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
-3-
<PAGE> 4
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of Stratham, State of New Hampshire, on this 19th
day of June, 1995.
THE TIMBERLAND COMPANY
By: /s/ Sidney W. Swartz
---------------------------------
Sidney W. Swartz
President
-4-
<PAGE> 5
POWER OF ATTORNEY
-----------------
Each person whose signature appears below constitutes and appoints
Jeffrey B. Swartz, Keith D. Monda and Dennis W. Hagele and each of them singly,
his true and lawful attorneys-in-fact and agents with full power of
substitution and resubstititution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 to be
filed by The Timberland Company, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
Chairman of the Board, Chief
Executive Officer, President and
/s/ Sidney W. Swartz Director June 19, 1995
- ------------------------------------
Sidney W. Swartz
Executive Vice President, Chief
/s/ Jeffrey B. Swartz Operating Officer and Director June 19, 1995
- ------------------------------------
Jeffrey B. Swartz
Senior Vice President - Finance and
Administration and Chief Financial
/s/ Keith D. Monda Officer June 19, 1995
- ------------------------------------
Keith D. Monda
Vice President - Finance and Chief
/s/ Dennis W. Hagele Accounting Officer June 19, 1995
- ------------------------------------
Dennis W. Hagele
/s/ Robert M. Agate Director June 19, 1995
- ------------------------------------
Robert M. Agate
/s/ John F. Brennan Director June 19, 1995
- ------------------------------------
John F. Brennan
/s/ Abraham Zaleznik Director June 19, 1995
- ------------------------------------
Abraham Zaleznik
</TABLE>
-5-
<PAGE> 6
<TABLE>
EXHIBIT INDEX
-------------
<CAPTION>
EXHIBIT NO. TITLE PAGE
- ------------------ ------------------------------------------------------------ ------------
<S> <C> <C>
4. The Timberland Company 1991 Employee Stock Purchase Plan. 7
5. Opinion of Ropes & Gray. 13
23.1 Consent of Deloitte & Touche. 14
23.2 Consent of Ropes & Gray (contained in Exhibit 5). --
24. Power of Attorney (included in Part II of the Registration
Statement under the caption "Signatures"). --
</TABLE>
-6-
<PAGE> 1
EXHIBIT 4
THE TIMBERLAND COMPANY
1991 EMPLOYEE STOCK PURCHASE PLAN
(AS AMENDED THROUGH MAY 18, 1995)
1. PURPOSE OF PLAN
This 1991 Employee Stock Purchase Plan (the "Plan") is intended to
provide a method by which eligible employees of The Timberland Company
("Timberland") and its participating subsidiaries (Timberland and such
subsidiaries being hereinafter referred to as the "Company") may use voluntary,
systematic payroll deductions to purchase shares of Timberland Class A Common
Stock ("Stock") and thereby acquire an interest in the future of the Company.
For purposes of the Plan, a subsidiary is any corporation in which Timberland
owns, directly or indirectly, stock possessing 50% or more of the total
combined voting power of all classes of stock and which has been designated by
the Board (as defined in Section 16) as a participating subsidiary.
2. OPTIONS TO PURCHASE STOCK
Under the Plan, there is available an aggregate of not more than
200,000 shares of Stock (subject to adjustment as provided in Section 15) for
sale pursuant to the exercise of options ("options") granted under the Plan to
employees (within the meaning of Section 3401(c) of the Internal Revenue Code
of 1986 (the "Code")) of the Company ("employees") who meet the eligibility
requirements set forth in Section 3 hereof ("eligible employees"). The Stock
to be delivered upon exercise of options under the Plan may be either shares of
Timberland authorized but unissued Stock or shares of reacquired Stock, as the
Board shall determine.
3. ELIGIBLE EMPLOYEES
------------------
Except as otherwise provided below, each employee who has completed
six months or more of continuous service in the employ of the Company shall be
eligible to participate in the Plan.
(a) Any employee who immediately after the grant of an option to
him would (in accordance with the provisions of Sections 423 and 424(d) of the
Code) own Stock possessing 5% or more of the total combined voting power or
value of all classes of Stock of the employer corporation or of its parent or
subsidiary corporations, as defined in Section 424 of the Code, shall not be
eligible to receive an option to purchase stock pursuant to the Plan.
(b) No employee shall be granted an option under the Plan which
would permit his rights to purchase shares of stock under all employee stock
purchase plans of the Company and
<PAGE> 2
any parent and subsidiary corporations to accrue at a rate which exceeds
$25,000 in fair market value of such stock (determined at the time the option
is granted) for each calendar year during which any such option granted to such
employee is outstanding at any time, as provided in Sections 423 and 424 of the
Code.
(c) No employee shall be eligible to participate in the Plan
unless such employee's customary employment with the Company is in excess of
twenty hours in each week and in excess of five months in each calendar year.
4. METHOD OF PARTICIPATION
-----------------------
The period of July 15, 1991 to December 31, 1991 and thereafter the
periods of January 1 to June 30 and July 1 to December 31 of each year shall be
option periods. Each person who will be an eligible employee on the first day
of any option period may elect to participate in the Plan by executing and
delivering to Timberland, at least 15 days prior to such day, a payroll
deduction authorization in accordance with Section 5. Such employee shall
thereby become a participant ("participant") on the first day of such option
period and shall remain a participant until his participation is terminated as
provided in the Plan. Notwithstanding the foregoing, the participation in the
Plan of individuals who make hardship withdrawals under The Timberland
Retirement Earnings 401(k) Plan ("TREK") shall be temporarily suspended under
the Plan to the extent, if any, required to comply with TREK and Section 401(k)
of the Code (including the regulations thereunder) and as consistent with
Section 423 of the Code, all as determined by the Administrative Committee (as
defined in Section 16).
5. PAYROLL DEDUCTION
-----------------
The payroll deduction authorization shall request withholding at a
rate of not less than 2% nor more than 10% from the participant's Compensation
by means of substantially equal payroll deductions over the option period. For
purposes of the Plan, "Compensation" shall mean all regular base compensation
paid to the participant by the Company and currently includible in his gross
income, including any withholding or deductions, but excluding bonuses,
commissions, overtime, shift premium, incentive compensation and other similar
amounts. A participant may change the withholding rate of his payroll deduction
authorization by written notice delivered to Timberland at least 15 days prior
to the first day of the option period as to which the change is to be
effective. All amounts withheld in accordance with a participant's payroll
deduction authorization shall be credited to a withholding account for such
participant.
6. GRANT OF OPTIONS
----------------
Each person who is a participant on the first day of an option period
shall as of such day be granted an option for such period. Such option shall
be for the number of whole shares of Stock to be determined by dividing (a) the
balance in the participant's withholding account on the
<PAGE> 3
last day of the option period, by (b) the purchase price per share of the Stock
determined under Section 7. The Administrative Committee shall reduce, on a
substantially proportionate basis, the number of shares of Stock receivable by
each participant upon exercise of his option for an option period in the event
that the number of shares then available under the Plan is otherwise
insufficient.
7. PURCHASE PRICE
--------------
The purchase price of Stock issued pursuant to the exercise of an
option shall be 85% of the fair market value of the Stock at (a) the time of
grant of the option or (b) the time at which the option is deemed exercised,
whichever is less. Fair market value shall mean the Closing Price of the
Stock. The "Closing Price" of stock on any business day shall be the last sale
price as reported on the principal market on which the Stock is traded or, if
no last sale is reported, then the mean between the highest bid and lowest
asked prices on that day. A good faith determination by the Board as to fair
market value shall be final and binding.
8. EXERCISE OF OPTIONS
-------------------
If an employee is a participant in the Plan on the last business day
of an option period, he shall be deemed to have exercised the option granted to
him for that period. Upon such exercise, the Company shall apply the balance
of the participant's withholding account to the purchase of the number of whole
shares of Stock determined under Section 6 and as soon as practicable
thereafter, Timberland shall issue and deliver certificates for said shares to
the participant. No fractional shares shall be issued hereunder. Any balance
of a participant's withholding account shall be returned to the participant,
except that any such balance representing a fractional share shall be retained
in the withholding account and applied to the next option period.
Timberland shall not be obligated to deliver any shares of Stock (a)
until, in the opinion of the Company's counsel, all applicable federal and
state laws and regulations have been complied with, and (b) 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 (c) 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, Timberland 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.
9. INTEREST
--------
No interest will be payable on withholding accounts.
<PAGE> 4
10. CANCELLATION AND WITHDRAWAL
---------------------------
A participant who holds an option under the Plan may at any time prior
to exercise thereof under Section 8 cancel all (but not less than all) of his
options by written notice delivered to Timberland. Upon such cancellation, the
balance in his withholding account shall be returned to him.
A participant may terminate his payroll deduction authorization as of
any date by written notice delivered to Timberland and shall thereby cease to
be a participant as of such date. Any participant who voluntarily terminates
his payroll deduction authorization prior to the last business day of an option
period shall be deemed to have canceled his option.
11. TERMINATION OF EMPLOYMENT
-------------------------
Except as provided in the immediately following sentence, upon the
termination of a participant's service with the Company for any reason,
including without limitation death, retirement, resignation, layoff or
discharge, he shall cease to be a participant, and any option held by him under
the Plan shall be deemed canceled, the balance of his withholding account shall
be returned to him and he shall have no further rights under the Plan.
Notwithstanding the immediately preceding sentence, in the event that a
participant commences a leave of absence during an option period and such leave
of absence has been approved by the Board, such participant shall be eligible
to participate in the Plan with respect to such option period to the extent of
payroll deductions withheld during such option period.
12. LIMITATIONS ON RESALE
---------------------
The Plan is intended to provide to employees of Timberland a favorable
opportunity to acquire shares of Stock at prices below the prevailing current
market price so that they will be able to participate as stockholders in
Timberland, and this purpose would not be furthered if participants disposed of
Stock acquired pursuant to the Plan immediately after its acquisition.
Therefore, no participant shall sell or otherwise dispose of any Stock acquired
pursuant to the Plan if such disposition would occur within the period
beginning at the end of the option period with respect to which such Stock was
acquired and ending on the date six months later unless such participant
notifies Timberland in writing of such intended disposition and the number of
shares of Stock of which such participant intends to dispose and unless such
notice is received by Timberland not less than 15 days prior to such intended
disposition. Upon receipt of such notice, Timberland shall automatically have
the option, exercisable at any time prior to the fifteenth day after such
notice has been received by Timberland, to repurchase from such participant the
number of shares of Stock specified in such notice at a price per share equal
to the price at which such participant acquired such shares from Timberland
pursuant to the Plan. No interest will be payable on any amounts so paid by
Timberland to any participant. Each certificate representing
<PAGE> 5
shares of Stock delivered pursuant to the Plan shall bear an appropriate legend
to give notice of the restrictions on transfer contained in this Section 12.
13. PARTICIPANT'S RIGHTS NOT TRANSFERABLE
-------------------------------------
All participants granted options under the Plan shall have the same
rights and privileges, and each participant's rights and privileges under any
option granted under the Plan shall be exercisable during his lifetime only by
him, and shall not be sold, pledged, assigned, or transferred in any manner.
In the event any participant violates the terms of this Section, any options
held by him may be terminated by the Company and upon return to the participant
of the balance of his withholding account, all his rights under the Plan shall
terminate.
14. EMPLOYMENT RIGHTS
-----------------
Nothing contained in the provisions of the Plan shall be construed to
give to any employee the right to be retained in the employ of the Company or
to interfere with the right of the Company to discharge any employee at any
time; nor shall it be construed to give the Company the right to require any
employee to remain in its employ or to interfere with any employee's right to
terminate his employment at any time.
15. CHANGE IN CAPITALIZATION
------------------------
In the event of any change in the outstanding Stock of Timberland by
reason of a stock dividend, split-up, recapitalization, merger, consolidation,
reorganization, or other capital change, the aggregate number and class of
shares available under the Plan and the number and class of shares under option
but not exercised, the option price, and the share limit provided for in
Section 6 shall be appropriately adjusted.
16. ADMINISTRATION OF PLAN
----------------------
The Plan is administered by an Administrative Committee, composed of
three management employees, which Committee is chosen by the Board of Directors
of the Company and serves at its pleasure. The Administrative Committee is
responsible for the day-to-day administration of the Plan, including
determinations of eligibility under the Plan, determinations as to the first
and last days of a participation period when such days do not fall on a
business day where trading in the Stock occurred, decisions with respect
to requests for leaves of absence by a participating employee as such requests
relate to the employee's participation in the Plan and other questions that may
arise under the Plan. Only the Board of Directors, however, has the power to
amend or to terminate the Plan.
<PAGE> 6
A majority of the members of the Committee shall constitute a quorum,
and all determinations of the Committee shall be made by a majority of its
members. Any determination of the Committee under the Plan may be made without
notice or meeting of the Committee by a writing signed by a majority of the
Committee members.
17. AMENDMENT AND TERMINATION OF PLAN
---------------------------------
The Company reserves the right at any time or times to amend the Plan
to any extent and in any manner it may deem advisable by vote of the Board;
provided, however, that any amendment relating to the aggregate number of
shares which may be issued under the Plan (other than an adjustment provided
for in Section 15) or to the employees (or class of employees) to receive
options under the Plan shall have no force or effect unless it shall have been
approved by the shareholders within twelve months before or after its adoption.
The Plan may be terminated at any time by the Board, but no such
termination shall adversely affect the rights and privileges of holders of the
outstanding options. The Plan will terminate in any case when all of the Stock
reserved for the purposes of the Plan has been purchased.
18. APPROVAL OF SHAREHOLDERS
------------------------
The Plan shall be subject to the approval of the shareholders of
Timberland, which approval shall be secured within twelve months after the date
the Plan is adopted by the Board of Directors.
<PAGE> 1
EXHIBIT 5
June 21, 1995
The Timberland Company
200 Domain Drive
Stratham, NH 03885
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-8 (the "Registration Statement"), filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, for the registration of 100,000 shares of Class A Common Stock, $0.01
par value (the "Shares"), of The Timberland Company (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 1991 Employee
Stock Purchase 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
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Timberland Company on Form S-8 of our reports dated February 9, 1995,
appearing and incorporated by reference in the Annual Report on Form 10-K of
The Timberland Company for the year ended December 31, 1994.
/s/ Deloitte & Touche
Boston, Massachusetts
June 20, 1995
