<PAGE> 1
As filed with the Securities and Exchange Commission on September 9, 1997
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 (I.R.S. Employer Identification No.)
of incorporation or organization)
200 DOMAIN DRIVE
STRATHAM, NEW HAMPSHIRE 03885
(Address of principal executive offices, including zip code)
-------------------------
1997 STOCK OPTION PLAN FOR NON-EXECUTIVE EMPLOYEES
1997 INCENTIVE PLAN
-------------------------
(Full title of the plans)
SIDNEY W. SWARTZ
President and Chief Executive Officer
The Timberland Company
200 Domain Drive
Stratham, New Hampshire 03885
(603) 772-9500
(Name and address, including zip code, and telephone number, including
area code, of agent for service)
------------------
Please send copies of all communications to:
HEMMIE CHANG, ESQUIRE
Ropes & Gray
One International Place
Boston, Massachusetts 02110
(617) 951-7000
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per share aggregate offering price registration fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Class A Common 134,750(1) $40.625(4) $ 5,474,218.75(4)
Stock, par value 146,500(2) $54.111(4) $ 7,927,261.50(4)
$0.01 853,500(3) $66.813(5) $57,024,895.50(5)
--------- --------------
1,134,750 $70,426,375.75 $21,341.33
- ------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Shares subject to options previously granted pursuant to the 1997 Stock
Option Plan for Non-Executive Employees.
(2) Shares subject to options previously granted pursuant to the 1997 Incentive
Plan.
(3) Shares subject to options authorized but not yet granted pursuant to the
1997 Incentive Plan.
(4) Based on the weighted average per share exercise price of the options
pursuant to which such shares may be issued.
(5) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h) on the basis of the average of the high and low prices of
The Timberland Company Class A Common Stock, par value $0.01, reported on
the New York Stock Exchange Composite Transactions tape on September 2,
1997.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates the following documents herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 (which incorporates by reference certain information
from the Registrant's Proxy Statement relating to the 1996 Annual
Meeting of Shareholders) (File No. 1-9548).
(b) All other reports filed by the Registrant with the Securities and
Exchange Commission pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since the end of
the fiscal year covered by the Registrant's Annual Report referred to
above.
(c) The description of the Company's Class A Common Stock, $0.01 par value
per share, contained in the Company's Registration Statement on Form
8-A (File Number 1-9548) filed on May 17, 1991, including any
amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not required.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
No material interests.
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 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
-2-
<PAGE> 3
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, (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. Specimen stock certificate representing shares of the Company's
Class A Common Stock.
4.2. 1997 Stock Option Plan for Non-Executive Employees.
4.3. 1997 Incentive Plan.
5. Opinion of Ropes & Gray.
23.1. Consent of Deloitte & Touche.
23.2. Consent of Ropes & Gray (contained in the opinion filed as
Exhibit 5 to this registration statement).
24. Power of Attorney (included in Part II of this registration
statement under the caption "Signatures").
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<PAGE> 4
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;
(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 this registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above
shall not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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
Securities 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 Securities
Act and will be governed by the final adjudication of such issue.
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<PAGE> 5
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 City of Stratham, State of New Hampshire on this 9th day of
September, 1997.
By: /s/ Sidney W. Swartz
--------------------------------------
Sidney W. Swartz
Chief Executive Officer
Each person whose signature appears below constitutes and appoints
Sidney W. Swartz, Jeffrey B. Swartz and Dennis W. Hagele, and each of them
individually, his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, 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,
granting unto said attorneys-in-fact and agents full power and authority to be
done in and about the premises, as fully to all intents and purposes as he might
or could do in person, 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 below by the following
persons in the capacities shown on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Sidney W. Swartz Chairman of the Board, Chief Executive September 9, 1997
- ---------------------- Officer, President and Director
Sidney W. Swartz (Principal Executive Officer)
/s/ Jeffrey B. Swartz Executive Vice President, Chief September 9, 1997
- ----------------------- Operating Officer and Director
Jeffrey B. Swartz
/s/ Geoffrey J. Hibner Senior Vice President-Finance and September 9, 1997
- ----------------------- Administration and Chief Financial
Geoffrey J. Hibner Officer (Principal Financial Officer)
/s/ Dennis W. Hagele Vice President-Finance and Corporate September 9, 1997
- ----------------------- Controller (Principal Accounting Officer)
Dennis W. Hagele
</TABLE>
<PAGE> 6
/s/ Robert M. Agate Director September 9, 1997
- -------------------------
Robert M. Agate
/s/ John F. Brennan Director September 9, 1997
- -------------------------
John F. Brennan
/s/ Ian W. Diery Director September 9, 1997
- -------------------------
Ian W. Diery
/s/ John A. Fitzsimmons Director September 9, 1997
- -------------------------
John A. Fitzsimmons
/s/ Abraham Zaleznik Director September 9, 1997
- -------------------------
Abraham Zaleznik
<PAGE> 7
EXHIBIT INDEX
Exhibit
- -------
Number Title of Exhibit
- ------ ----------------
4.1. Specimen stock certificate representing shares of the
Company's Class A Common Stock.
4.2. 1997 Stock Option Plan for Non-Executive Employees.
4.3. 1997 Incentive Plan.
5. Opinion of Ropes & Gray.
23.1. Consent of Deloitte & Touche.
23.2. Consent of Ropes & Gray (contained in the opinion filed as
Exhibit 5 to this registration statement).
24. Power of Attorney (included in Part II of this registration
statement under the caption "Signatures").
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<PAGE> 1
EXHIBIT 4.1
CLASS A
COMMON STOCK
PAR VALUE $.01 PER SHARE
TIMBERLAND(R) [LOGO](R)
------------------
SHARES
------------------
THE TIMBERLAND COMPANY
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFICATE IS TRANSFERABLE IN BOSTON, NEW YORK, CHICAGO AND LOS ANGELES
CUSIP 887100 105
- --------------------------------------------------------------------------------
THIS CERTIFIES THAT
IS THE OWNER OF
- --------------------------------------------------------------------------------
FULLY PAID AND NONASSESSABLE SHARES OF THE CLASS A COMMON STOCK OF
The Timberland Company transferable only on the books of the Corporation by the
holder hereof in person or by attorney upon surrender of this Certificate duly
endorsed or assigned. This Certificate and the shares represented hereby are
subject to the laws of the State of Delaware and to the provisions of the
Certificate of Incorporation and By-Laws of the Corporation as from time to
time amended. This Certificate is not valid unless countersigned and registered
by the Transfer Agent and Registrar.
Witness the seal of the Corporation and the signatures of its duly
authorized officers.
Dated:
[LOGO]
John E. Beard Sidney W. Swartz
SECRETARY PRESIDENT
COUNTERSIGNED AND REGISTERED:
THE FIRST NATIONAL BANK OF BOSTON,
TRANSFER AGENT AND REGISTRAR,
BY
AUTHORIZED SIGNATURE.
<PAGE> 2
THE TIMBERLAND COMPANY
The shares evidenced by this certificate represent one of three classes
of stock of the Corporation and are subject to the respective powers,
designations, preferences and relative participation, optional and other
special rights of the classes of the Corporation's stock, and the
qualifications, limitations and restrictions of such preferences and rights,
set forth in the Certificate of Incorporation, as amended. The Corporation will
furnish a copy of such powers, designations, preferences and relative
participation, optional and other special rights, and the qualifications,
limitations and restrictions of such preferences and rights, to the holder of
this certificate without charge, upon request.
ASSIGNMENT
For Value Received,________________________________hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
- ---------------------------------------
- -------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- -------------------------------------------------------------------------------
_________________________________________________________________________ Shares
represented by the within Certificate, and do hereby irrevocably constitute
and appoint____________________________________________________________Attorney
to transfer the said Shares on the books of the within named Corporation with
full power of substitution in the premises.
Dated ____________________ 19__ ___________________________________________
NOTICE: The signature of this assignment
must correspond with the name as written
upon the face of the certificate, in every
particular, without alteration enlargement
or any change whatever.
<PAGE> 1
EXHIBIT 4.2
THE TIMBERLAND COMPANY
1997 STOCK OPTION PLAN FOR
NON-EXECUTIVE EMPLOYEES
1. PURPOSE
-------
The purpose of this 1997 Stock Option Plan for Non-Executive Employees (the
"Plan") is to advance the interests of The Timberland Company (the "Company") by
enhancing the ability of the Company (a) to attract and retain non-executive
employees who are in a position to make significant contributions to the success
of the Company; (b) to reward such employees for such contributions; and (c) to
encourage such employees to take into account the long-term interests of the
Company through ownership of shares of the Company's Class A Common Stock (the
"Stock").
All options granted pursuant to the Plan shall be nonstatutory options,
meaning options that are not intended to be incentive stock options as defined
in Section 422 of the Internal Revenue Code of 1986 (as it may from time to time
be amended) (the "Code").
2. ADMINISTRATION
--------------
The Plan shall be administered by the Board of Directors of the Company
(the "Board").
The Board may, in its discretion, delegate its powers with respect to the
Plan to a committee (the "Committee"), in which event all references herein to
the Board shall be deemed to be references to the Committee, PROVIDED that the
Board may not so delegate its powers to amend or terminate the Plan in
accordance with the last sentence of Section 8 below. The Committee shall
consist of at least two Directors. 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.
The Board shall have authority, not inconsistent with the express
provisions of the Plan: (a) to grant options to such eligible employees as the
Board may select; (b) to determine the time or times when options shall be
granted and the number of shares of Stock subject to each option; (c) to
determine the terms and conditions of each option; (d) to prescribe the form or
forms of instruments evidencing options and any other instruments required under
the Plan and to change such forms from time to time; (e) to adopt, amend and
rescind rules and regulations for the administration of the Plan; and (f) to
interpret the Plan and to decide any questions and settle all controversies and
disputes that may arise in connection with the Plan. Subject to Section 8, the
Board shall also have the authority, both generally and in particular instances,
to waive compliance by an employee with any obligation to be performed by such
employee under an option and to waive any condition or provision of an option.
All such determinations and actions of the Board shall be conclusive and shall
bind all parties.
3. EFFECTIVE DATE AND TERM OF PLAN
-------------------------------
The Plan shall become effective upon the date on which the Plan is adopted
by the Board. No option shall be granted under the Plan after the completion of
ten years from the date on which the Plan was adopted by the Board of Directors,
but options previously granted may extend beyond that date.
4. SHARES SUBJECT TO THE PLAN
--------------------------
<PAGE> 2
a. NUMBER OF SHARES. Subject to adjustment as provided in Section 4(c),
the maximum aggregate number of shares of Stock that may be delivered
upon the exercise of options granted under the Plan shall be 150,000.
If any option granted under the Plan terminates without having been
exercised in full, the number of shares of Stock as to which such
option was not exercised shall be available for future grants within
the limits set forth in this Section 4(a).
b. SHARES TO BE DELIVERED. Shares delivered under the Plan shall be
authorized but unissued Stock or, if the Board so decides in its sole
discretion, previously issued Stock acquired by the Company and held
in treasury. No fractional shares of Stock shall be delivered under
the Plan.
c. CHANGES IN STOCK. In the event of a stock dividend, stock split or
combination of shares, recapitalization or other change in the
Company's capital stock, the number and kind of shares of stock or
securities of the Company subject to options then outstanding or
subsequently granted under the Plan, the maximum number of shares or
securities that may be delivered under the Plan, the exercise price,
and other relevant provisions shall be appropriately adjusted by the
Board, whose determination shall be binding on all persons.
The Board may also adjust the number of shares subject to outstanding
options, the exercise price of outstanding options and the terms of outstanding
options to take into consideration material changes in accounting practices or
principles, consolidations or mergers (except those described in Section 6(h)),
acquisitions or dispositions of stock or property or any other event if it is
determined by the Board that such adjustment is appropriate to avoid a material
change in the operation of the Plan.
d. REPLACEMENT OPTIONS. The Board may grant options under the Plan in
substitution for options held by employees of another corporation who
concurrently become employees of the Company or a subsidiary as the
result of a merger or consolidation of the employing corporation with
the Company or a subsidiary or the acquisition by the Company or a
subsidiary of property or stock of the employing corporation. The
Board may direct that the replacement options be granted on such terms
and conditions as the Board considers appropriate in the
circumstances.
5. ELIGIBILITY FOR OPTIONS
-----------------------
Employees eligible to receive options under the Plan shall be those
employees of the Company and its subsidiaries, other than executive officers (as
determined by the Board), who, in the opinion of the Board, are in a position to
make a significant contribution to the success of the Company or such
subsidiaries. A subsidiary for purposes of the Plan shall be a corporation in
which the Company owns, directly or indirectly, stock possessing 50% or more of
the total combined voting power of all classes of stock. Directors who are not
employees shall not be eligible to participate in the Plan.
Receipt of options under the Plan or of awards under any other employee benefit
plan of the Company or any of its subsidiaries shall not preclude an employee
from receiving options or additional options under the Plan.
6. TERMS AND CONDITIONS OF OPTIONS
-------------------------------
a. EXERCISE PRICE. The exercise price of each option shall be determined
by the Board, but the exercise price of any option shall not be less,
in the case of an original issue of authorized stock, than the par
value per share.
b. DURATION OF OPTIONS. In no case shall an option be exercisable more
than ten years from the date the option was granted.
c. EXERCISE OF OPTIONS.
2
<PAGE> 3
i. Each option shall be made exercisable at such time or times,
whether or not in installments, as the Board shall prescribe at
the time an option is granted. In the case of an option not
immediately exercisable in full, the Board may at any time
accelerate the time at which all or any part of the option may be
exercised.
ii. Any exercise of an option shall be in writing, signed by the
proper person and delivered or mailed to the Company, accompanied
by (a) the option certificate and any other documents required by
the Board and (b) payment in full for the number of shares for
which the option is exercised.
iii. The Board shall have the right to require that the individual
exercising the option remit to the Company an amount sufficient
to satisfy any federal, state, or local withholding tax
requirements (or make other arrangements satisfactory to the
Company with regard to such taxes) prior to the delivery of any
Stock pursuant to the exercise of the option.
iv. If an option is exercised by the executor or administrator of a
deceased employee, or by the person or persons to whom the option
has been transferred by the employee's will or the applicable
laws of descent and distribution, the Company shall be under no
obligation to deliver Stock pursuant to such exercise until the
Company is satisfied as to the authority of the person or persons
exercising the option.
d. PAYMENT FOR AND DELIVERY OF STOCK. Stock purchased under the Plan
shall be paid for as follows: (i) in cash or by certified check, bank
draft or money order payable to the order of the Company or (ii) if so
permitted by the terms of the option, (A) through the delivery of
shares of Stock having a fair market value on the last business day
preceding the date of exercise equal to the purchase price or (B) by a
combination of cash and Stock as provided in clauses (i) and (ii)(A)
above or (iii) if so permitted by the terms of the option, by delivery
of a promissory note of the employee containing such terms and
conditions, including without limitation interest rate and maturity,
as the Board may specify in the option (except that the option may
provide that the rate of interest on the note will be such rate as is
sufficient at all times to avoid the imputation of any interest under
the applicable provision of the Code), or by a combination of cash (or
cash and Stock) and such a promissory note; PROVIDED, that if the
Stock delivered upon exercise of the option is an original issue of
authorized Stock, at least so much of the exercise price as represents
the par value of such Stock shall be paid in cash, in Stock or by a
combination of cash and Stock.
An option holder shall not have the rights of a shareholder with regard to
awards under the Plan except as to Stock actually received by such option holder
under the Plan.
The Company 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 (the "Securities Act"), 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 the
Securities Act and may require that the certificates evidencing such Stock bear
an appropriate legend restricting transfer.
e. NONTRANSFERABILITY OF OPTIONS. Options may not be sold, pledged,
assigned, hypothecated, transferred or disposed of in any manner other
than by will or by the laws of descent and distribution and may be
exercised, during the lifetime of an employee, only by the employee.
3
<PAGE> 4
f. DEATH. If an employee's employment with the Company and its
subsidiaries terminates by reason of death, each option held by the
employee immediately prior to death shall become immediately
exercisable by such employee's 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 the
one-year period ending with the first anniversary of the employee's
death (subject, however, to the limitations of Section 6(b) regarding
the maximum exercise period for such option).
g. OTHER TERMINATION OF EMPLOYMENT. If an employee's employment with the
Company and its subsidiaries terminates for any reason other than
death, all options held by the employee 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 90 days
(subject to Section 6(b) and the last sentence of Section 6(f)) unless
the employee was discharged for cause which in the opinion of the
Board casts such discredit on the employee as to justify termination
of such employee's options. After completion of that 90 day period,
such options shall terminate to the extent not previously exercised,
expired or terminated. For purposes of this Section 6(g), employment
shall not be considered terminated (i) in the case of sick leave or
other bona fide leave of absence approved for purposes of the Plan by
the Board, so long as the employee's right to reemployment is
guaranteed either by statute or by contract, or (ii) in the case of a
transfer of employment between the Company and a subsidiary or between
subsidiaries, or to the employment of a corporation (or a parent or
subsidiary corporation of such corporation) issuing or assuming an
option in a transaction of a type to which Section 424(a) of the Code
would apply in the case of incentive stock options.
h. MERGERS, ETC. In the event of any merger or consolidation involving
the Company, any sale of all or substantially all of the Company's
assets or any other transaction or series of related transactions as a
result of which a single Person (as defined below) or several Persons
acting in concert own a majority of the Company's then outstanding
voting common stock (such merger, consolidation, sale or other
transaction being hereinafter referred to as a "Transaction"), all
outstanding options shall become exercisable immediately prior to the
consummation of such Transaction. Upon consummation of the
Transaction, all outstanding options shall terminate and cease to be
exercisable. There shall be excluded from the foregoing any
Transaction as a result of which (a) 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 (b) no single Person owns more than
half of the outstanding voting common stock of the acquiring or
surviving corporation or other entity, unless such Person was a
stockholder of the Company on February 27, 1997 or is an Affiliate (as
defined below) of any such stockholder. 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.
In lieu of the provisions of the immediately preceding paragraph, if there
is an acquiring or surviving corporation or entity, the Board may, by vote of a
majority of the members of the Board who are Continuing Directors (as defined
below), arrange to have such acquiring or surviving corporation or entity or an
Affiliate thereof grant replacement options to employees holding outstanding
options.
i. The term "Continuing Director" shall mean any director of the Company
who (i) is not an Acquiring Person or an Affiliate of an Acquiring
Person and (ii) either was (A) a member of the Board of Directors of
the Company on February 27, 1997 or (B) nominated for his or her
initial term of office by a majority of the Continuing Directors in
office at the time of such nomination. The term "Acquiring Person"
shall mean, with respect to any Transaction, each Person who is a
party to or a participant in such Transaction
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or who, as a result of such Transaction, would (together with other
Persons acting in concert) own a majority of the Company's outstanding
Common Stock; PROVIDED, HOWEVER, that none of the Company, any
wholly-owned subsidiary of the Company, any employee benefit plan of
the Company, any trustee in respect thereof acting in such capacity or
any Person which was a stockholder of the Company on February 27, 1997
or is an Affiliate of any such stockholder shall, for purposes of this
Section, be deemed an "Acquiring Person". The term "Affiliate" with
respect to any Person, shall mean any other Person who is, or would be
deemed to be, an "affiliate" or an "associate" of such Person within
the respective meanings ascribed to such terms in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
term "Person" shall mean an individual, corporation, partnership,
association, trust, unincorporated organization, other entity or group
(as defined in Section 13(d)(3) of the Exchange Act).
7. EMPLOYMENT RIGHTS
-----------------
Neither the adoption of the Plan nor the grant of options shall confer upon
any employee any right to continued employment with the Company or any
subsidiary or affect in any way the right of the Company or subsidiary to
terminate the employment of an employee at any time. Except as specifically
provided by the Board in any particular case, the loss of existing or potential
profit in options granted under this Plan shall not constitute an element of
damages in the event of termination of the employment of an employee even if the
termination is in violation of an obligation of the Company or any subsidiary to
the employee by contract or otherwise.
8. EFFECT OF DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION
-----------------------------------------------------------------
Neither adoption of the Plan nor the grant of options to an employee
hereunder shall affect the Company's right to grant to such employee options
that are not subject to the Plan, to issue to such employee Stock as a bonus or
otherwise, or to adopt other plans or arrangements under which Stock may be
issued to such employee.
The Board may at any time discontinue granting options under the Plan. With
the consent of the employee, the Board may, at any time or times, cancel an
existing option in whole or in part and grant the employee another option for
such number of shares as the Board specifies. The Board may, at any time or
times, amend the Plan for the purpose of satisfying applicable laws or
regulations or for any other purpose which may at the time be permitted by law,
or may at any time terminate the Plan as to any further grants of options.
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Exhibit 4.3
THE TIMBERLAND COMPANY
1997 INCENTIVE PLAN
1. DEFINED TERMS
Exhibit A, which is incorporated by reference, defines the terms used in
the Plan.
2. IN GENERAL
The Plan has been established to advance the interests of the Company by
giving selected Employees, directors and other persons (including both
individuals and entities) who provide services to the Company or its Affiliates
equity-based or cash incentives through the grant of Awards.
3. ADMINISTRATION
The Administrator has discretionary authority, subject only to the express
provisions of the Plan, to interpret the Plan; determine eligibility for and
grant Awards; determine, modify or waive the terms and conditions of any Award;
prescribe forms, rules and procedures (which it may modify or waive); and
otherwise do all things necessary to carry out the purposes of the Plan. Once an
Award has been communicated in writing to a Participant, the Administrator may
not, without the Participant's consent, alter the terms of the Award so as to
affect adversely the Participant's rights under the Award, unless the
Administrator expressly reserved the right to do so in writing at the time of
such communication. In the case of any Award intended to be eligible for the
performance-based compensation exception under Section 162(m), the Administrator
shall exercise its discretion consistent with qualifying the Award for such
exception. The Administrator may delegate to senior management the authority to
grant Awards, other than Awards to the Chief Executive Officer, the Chief
Operating Officer, or any Senior Vice President.
4. SHARES SUBJECT TO THE PLAN
A. A total of 1,000,000 shares of Stock have been reserved for issuance
under the Plan. The following shares of Stock will also be available for future
grants:
(i) shares of Stock remaining under an Award that terminates without
having been exercised in full (in the case of an Award requiring exercise
by a Participant for delivery of Stock);
(ii) shares of Stock subject to an Award, where cash is delivered to a
Participant in lieu of such shares;
(iii) shares of Restricted Stock that are forfeited to the Company;
(iv) shares of Stock tendered by a Participant to the Company as
payment upon exercise of an Award; and
(v) shares of Stock held back by the Company, or tendered by a
Participant to the Company, in satisfaction of tax withholding
requirements.
Stock delivered under the Plan may be authorized but unissued Stock or
previously issued Stock acquired by the Company and held in treasury. No
fractional shares of Stock will be delivered under the Plan.
B. The maximum number of shares of Stock for which Stock Options may be
granted to any person over the life of the Plan shall be 1,000,000. The maximum
number of shares of Stock subject to SARs granted to any person over the life of
the Plan shall likewise be 1,000,000. For purposes of the preceding two
sentences,
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the repricing of a Stock Option or SAR shall be treated as a new grant to the
extent required under Section 162(m). The aggregate maximum number of shares of
Stock delivered to any person over the life of the Plan pursuant to Awards that
are not Stock Options or SARs shall also be 1,000,000. Subject to these
limitations, each person eligible to participate in the Plan shall be eligible
in any year to receive Awards covering up to the full number of shares of Stock
then available for Awards under the Plan.
5. ELIGIBILITY AND PARTICIPATION
The Administrator will select Participants from among those key Employees,
directors and other individuals or entities providing services to the Company or
its Affiliates who, in the opinion of the Administrator, are in a position to
make a significant contribution to the success of the Company and its
Affiliates. Eligibility for ISOs is further limited to those individuals whose
employment status would qualify them for the tax treatment described in Sections
421 and 422 of the Code.
6. RULES APPLICABLE TO AWARDS
A. ALL AWARDS
(1) Performance Objectives. Where rights under an Award depend in
whole or in part on attainment of performance objectives, actions by the
Company that have an effect, however material, on such performance
objectives or on the likelihood that they will be achieved will not be
deemed an amendment or alteration of the Award unless accomplished by a
change in the express terms of the Award or other action that is without
substantial consequence except as it affects the Award.
(2) Alternative Settlement. The Company retains the right at any time
to extinguish rights under an Award in exchange for payment in cash, Stock
(subject to the limitations of Section 4) or other property on such terms
as the Administrator determines, provided the holder of the Award consents
to such exchange.
(3) Transferability of Awards. Except as the Administrator otherwise
expressly provides, Awards (other than an Award in the form of an outright
transfer of cash or Unrestricted Stock) may not be transferred other than
by will or by the laws of descent and distribution. During a Participant's
lifetime an Award requiring exercise may be exercised only by the
Participant (or in the event of the Participant's incapacity, the person or
persons legally appointed to act on the Participant's behalf).
(4) Vesting, Etc. The Administrator may determine the time or times
at which an Award will vest (i.e., become free of forfeiture restrictions)
or become exercisable. Unless the Administrator expressly provides
otherwise, an Award requiring exercise will cease to be exercisable, and
all other Awards to the extent not already fully vested will be forfeited,
immediately upon the cessation (for any reason, including death) of the
Participant's employment or other service relationship with the Company and
its Affiliates.
(5) Taxes. The Administrator will make such provision for the
withholding of taxes as it deems necessary. The Administrator may, but need
not, hold back shares of Stock from an Award or permit a Participant to
tender previously owned shares of Stock in satisfaction of tax withholding
requirements.
(6) Dividend Equivalents, Etc. The Administrator may provide for the
payment of amounts in lieu of cash dividends or other cash distributions
with respect to Stock subject to an Award.
(7) Rights Limited. Nothing in the Plan shall be construed as giving
any person the right to continued employment or service with the Company or
its Affiliates, or any rights as a shareholder except as to shares of Stock
actually issued under the Plan. The loss of existing or potential profit in
Awards will not constitute an element of damages in the event of
termination of employment or service for any reason, even if the
termination is in violation of an obligation of the Company or Affiliate to
the Participant.
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(8) Section 162(m). In the case of an Award intended to be eligible
for the performance-based compensation exception under Section 162(m), the
Plan and such Award shall be construed to the maximum extent permitted by
law in a manner consistent with qualifying the Award for such exception.
B. AWARDS REQUIRING EXERCISE
(1) Time And Manner Of Exercise. Unless the Administrator expressly
provides otherwise, (a) an Award requiring exercise by the holder will not
be deemed to have been exercised until the Administrator receives a written
notice of exercise (in form acceptable to the Administrator) signed by the
appropriate person and accompanied by any payment required under the Award;
and (b) if the Award is exercised by any person other than the Participant,
the Administrator may require satisfactory evidence that the person
exercising the Award has the right to do so.
(2) Payment Of Exercise Price, If Any. Where the exercise of an Award
is to be accompanied by payment, the Administrator may determine the
required or permitted forms of payment either at or after the time of the
Award, subject to the following: (a) unless the Administrator expressly
provides otherwise, all payments will be by cash or check acceptable to the
Administrator; and (b) where shares of Stock issued under an Award are part
of an original issue of shares, the Award shall require an exercise price
equal to at least the par value of such shares.
(3) Reload Awards. The Administrator may provide that upon the
exercise of an Award, either by payment of cash or (if permitted under
Section 6.b.(2) above) through the tender of previously owned shares of
Stock, the Participant or other person exercising the Award will
automatically receive a new Award of like kind covering a number of shares
of Stock equal to the number of shares of Stock for which the first Award
was exercised.
(4) ISOs. No ISO may be granted under the Plan after February 26,
2007, but ISOs previously granted may extend beyond that date.
C. AWARDS NOT REQUIRING EXERCISE
Awards of Restricted Stock and Unrestricted Stock may be made in return for
either (i) services determined by the Administrator to have a value not less
than the par value of the awarded shares of Stock, or (ii) cash or other
property having a value not less than the par value of the awarded shares of
Stock plus such additional amounts (if any) as the Administrator may determine
payable in such combination and type of cash, other property (of any kind) or
services as the Administrator may determine.
7. EFFECT OF CERTAIN TRANSACTIONS
A. MERGERS, ETC.
In the event of (i) a consolidation or merger in which the Company is not
the surviving corporation or which results in the acquisition of a majority of
the Company's then outstanding voting common stock by a single person or entity
or by a group of persons and/or entities acting in concert, (ii) a sale or
transfer of all or substantially all the Company's assets, or (iii) a
dissolution or liquidation of the Company (any of the foregoing, a "covered
transaction"), all outstanding Awards requiring exercise will cease to be
exercisable, and all other Awards to the extent not fully vested (including
Awards subject to performance conditions not yet satisfied or determined) will
be forfeited, as of the effective time of the covered transaction; provided,
however, that immediately prior to the consummation of such covered transaction
the vesting or exercisability of Awards shall be accelerated unless, in the case
of any Award, the Administrator provides for one or more substitute or
replacement awards from, or the assumption of the existing Award by, the
acquiring entity (if any) or its affiliates.
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The Administrator may provide in the case of any Award that the provisions
of the preceding paragraph shall also apply to (i) mergers or consolidations
involving the Company that do not constitute a covered transaction, or (ii)
other transactions, not constituting a covered transaction, that involve the
acquisition of the Company's outstanding Stock.
B. CHANGES IN AND DISTRIBUTIONS WITH RESPECT TO THE STOCK
(1) Basic Adjustment Provisions. In the event of a stock dividend, stock
split or combination of shares, recapitalization or other change in the
Company's capital structure, the Administrator will make appropriate adjustments
to the maximum number of shares that may be delivered under the Plan under
Section 4.a. and to the maximum share limits described in Section 4.b., and will
also make appropriate adjustments to the number and kind of shares of stock or
securities subject to Awards then outstanding or subsequently granted, any
exercise prices relating to Awards and any other provision of Awards affected by
such change.
(2) Certain Other Adjustments. The Administrator may also make adjustments
of the type described in paragraph (1) above to take into account distributions
to common stockholders other than stock dividends or normal cash dividends,
mergers, consolidations, acquisitions, dispositions or similar corporate
transactions, or any other event, if the Administrator determines that
adjustments are appropriate to avoid distortion in the operation of the Plan and
to preserve the value of Awards made hereunder; provided, that no such
adjustment shall be made to the maximum share limits described in Section 4.b.,
or otherwise to an Award intended to be eligible for the performance-based
exception under Section 162(m), except to the extent consistent with that
exception.
(3) Continuing Application of Plan Terms. References in the Plan to shares
of Stock shall be construed to include any stock or securities resulting from an
adjustment pursuant to Section 7.b.(1) or 7.b.(2) above.
8. CONDITIONS ON DELIVERY OF STOCK
The Company will not be obligated to deliver any shares of Stock pursuant
to the Plan or to remove any restriction from shares of Stock previously
delivered under the Plan until: the Company's counsel has approved all legal
matters in connection with the issuance and delivery of such shares; if the
outstanding Stock is at the time of delivery listed on any stock exchange or
national market system, the shares to be delivered have been listed or
authorized to be listed on such exchange or system upon official notice of
issuance; and all conditions of the Award have been satisfied or waived. 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 Award, such
representations or agreements as counsel for the Company may consider
appropriate to avoid violation of such Act. The Company may require that
certificates evidencing Stock issued under the Plan bear an appropriate legend
reflecting any restriction on transfer applicable to such Stock.
9. AMENDMENT AND TERMINATION
Subject to the last sentence of Section 3, the Administrator may at any
time or times amend the Plan or any outstanding Award for any purpose which may
at the time be permitted by law, or may at any time terminate the Plan as to any
further grants of Awards; provided, that (except to the extent expressly
required or permitted by the Plan) no such amendment will, without the approval
of the stockholders of the Company, effectuate a change for which stockholder
approval is required in order for the Plan to continue to qualify under Section
422 of the Code and for Awards to be eligible for the performance-based
exception under Section 162(m).
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10. NON-LIMITATION OF THE COMPANY'S RIGHTS
The existence of the Plan or the grant of any Award shall not in any way
affect the Company's right to award a person bonuses or other compensation in
addition to Awards under the Plan.
11. GOVERNING LAW
The Plan shall be construed in accordance with the laws of the State of New
Hampshire.
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EXHIBIT A
DEFINITION OF TERMS
The following terms, when used in the Plan, shall have the meanings and be
subject to the provisions set forth below:
"ADMINISTRATOR": The Committee, if one has been appointed; otherwise the
Board.
"AFFILIATE": Any corporation or other entity owning, directly or
indirectly, 50% or more of the outstanding Stock of the Company, or in which the
Company or any such corporation or other entity owns, directly or indirectly,
50% of the outstanding capital stock (determined by aggregate voting rights) or
other voting interests.
"AWARD": Any of the following:
(i) Options ("Stock Options") entitling the recipient to acquire
shares of Stock upon payment of the exercise price. Each Stock Option
(except as otherwise expressly provided by the Committee consistent with
continued qualification of the Stock Option as a performance-based award
for purposes of Section 162(m), or unless the Committee expressly
determines that such Stock Option is not subject to Section 162(m) or that
the Stock Option is not intended to qualify for the performance-based
exception under Section 162(m)) will have an exercise price equal to the
fair market value of the Stock subject to the option, determined as of the
date of grant, except that an ISO granted to an Employee described in
Section 422(b)(6) of the Code will have an exercise price equal to 110% of
such fair market value. The Administrator will determine the medium in
which the exercise price is to be paid, the duration of the option, the
time or times at which an option will become exercisable, provisions for
continuation (if any) of option rights following termination of the
Participant's employment with the Company and its Affiliates, and all other
terms of the Stock Option. No Stock Option awarded under the Plan will be
an ISO unless the Administrator expressly provides for ISO treatment.
(ii) Rights ("SARs") entitling the holder upon exercise to receive
cash or Stock, as the Administrator determines, equal to a function
(determined by the Administrator using such factors as it deems
appropriate) of the amount by which the Stock has appreciated in value
since the date of the Award.
(iii) Stock subject to restrictions ("Restricted Stock") under the
Plan requiring that such Stock be redelivered to the Company if specified
conditions are not satisfied. The conditions to be satisfied in connection
with any Award of Restricted Stock, the terms on which such Stock must be
redelivered to the Company, the purchase price of such Stock, and all other
terms shall be determined by the Administrator.
(iv) Stock not subject to any restrictions under the Plan
("Unrestricted Stock").
(v) A promise to deliver Stock or other securities in the future on
such terms and conditions as the Administrator determines.
(vi) Securities (other than Stock Options) that are convertible into
or exchangeable for Stock on such terms and conditions as the Administrator
determines.
(vii) Cash bonuses tied to performance criteria as described at (viii)
below ("Cash Performance Awards").
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(viii) Awards described in any of (i) through (vii) above where the
right to exercisability, vesting or full enjoyment of the Award is
conditioned in whole or in part on the satisfaction of specified
performance criteria ("Performance Awards"). The Committee in its
discretion may grant Performance Awards that are intended to qualify for
the performance-based compensation exception under Section 162(m) and
Performance Awards that are not intended so to qualify. No more than
$1,000,000 may be paid to any individual with respect to any Cash
Performance Award. In applying the limitation of the preceding sentence:
(A) multiple Cash Performance Awards to the same individual that are
determined by reference to performance periods of one year or less ending
with or within the same fiscal year of the Company shall be subject in the
aggregate to one $1,000,000 limit, and (B) multiple Cash Performance Awards
to the same individual that are determined by reference to one or more
multi-year performance periods ending in the same fiscal year of the
Company shall be subject in the aggregate to a separate limit of
$1,000,000. With respect to any Performance Award other than a Cash
Performance Award, Stock Option or SAR, the maximum award opportunity shall
be 250,000 shares of Stock or their equivalent value in cash, subject to
the limitations of Section 4.b. For the avoidance of doubt, any Performance
Award of a type described in (i) through (vi) above shall be treated for
purposes of this paragraph as a Performance Award that is not a Cash
Performance Award, even if payment is made in cash.
In the case of a Performance Award intended to qualify as
performance-based for the purposes of Section 162(m) (other than a Stock
Option or SAR with an exercise price at least equal to the fair market
value of the underlying Stock on the date of grant), the Committee shall in
writing preestablish a specific performance goal (based solely on one or
more qualified performance criteria or a combination of qualified
performance criteria) no later than 90 days after the commencement of the
period of service to which the performance relates (or at such earlier time
as is required to qualify the award as performance-based under Section
162(m)). For purposes of the Plan, a qualified performance criterion is any
of the following (determined either on a consolidated basis or, as the
context permits, on a divisional, subsidiary, line of business or
geographical basis or in combinations thereof): (i) sales; revenues;
assets; expenses; earnings before or after deduction for all or any portion
of interest, taxes, depreciation or amortization, whether or not on a
continuing operations or an aggregate or per share basis; return on equity,
investment, capital or assets; gross margin; inventory level or turns; one
or more operating ratios; borrowing levels, leverage ratios or credit
rating; market share; capital expenditures; cash flow; stock price;
stockholder return; or other objective operating contributions; or (ii)
acquisitions and divestitures (in whole or in part); joint ventures and
strategic alliances; spin-offs, split-ups and the like; reorganizations;
recapitalizations, restructurings, financings (issuance of debt or equity)
and refinancings; or other transactions that involve a change in the equity
ownership of the Company. Prior to payment of any Performance Award (other
than a Stock Option or SAR with an exercise price at least equal to the
fair market value of the underlying Stock on the date of grant) intended to
qualify as performance-based under Section 162(m), the Committee shall
certify whether the performance goal has been attained and such
determination shall be final and conclusive. If the performance goal with
respect to any such Award is not attained, no other Award shall be provided
in substitution of the Performance Award.
(ix) Grants of cash, or loans, made in connection with other Awards in
order to help defray in whole or in part the economic cost (including tax
cost) of the Award to the Participant. The terms of any such grant or loan
shall be determined by the Administrator.
Awards may be combined in the Administrator's discretion.
"BOARD": The Board of Directors of the Company.
"CODE": The U.S. Internal Revenue Code of 1986 as from time to time amended
and in effect, or any successor statute as from time to time in effect.
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"COMMITTEE": A committee of the Board comprised solely of two or more
outside directors within the meaning of Section 162(m). The Committee may
delegate ministerial tasks to such persons (including Employees) as it deems
appropriate.
"COMPANY": The Timberland Company
"EMPLOYEE": Any person who is employed by the Company or an Affiliate.
"ISO": A Stock Option intended to be an "incentive stock option" within the
meaning of Section 422 of the Code.
"PARTICIPANT": An Employee, director or other person providing services to
the Company or its Affiliates who is granted an Award under the Plan.
"PLAN": The Timberland Company 1997 Incentive Plan as from time to time
amended and in effect.
"SECTION 162(M)": Section 162(m) of the Code.
"STOCK": Class A Common Stock of the Company, par value $.01 per share.
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EXHIBIT 5
September 9, 1997
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") to be filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, for the registration of 1,134,750 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 1997 Stock Option
Plan for Non-Executive Employees and 1997 Incentive Plan (together, the
"Plans"). For purposes of this opinion we have examined the Plans 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 Plans, 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
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of The Timberland Company of our reports dated February 5, 1997,
appearing and incorporated by reference in the Annual Report on Form 10-K of The
Timberland Company for the year ended December 31, 1996.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
September 5, 1997
