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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):
June 12, 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 |
(State or other jurisdiction of
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(Commission file number)
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(IRS employer identification |
incorporation or organization)
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number) |
200 DOMAIN DRIVE
STRATHAM, NH 03885
(Address of Principal Executive Offices) (Zip Code)
Registrants 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):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
TABLE OF CONTENTS
Item 1.01 Entry into a Material Definitive Agreement.
On June 12, 2011, The Timberland Company (the Company) entered into an Agreement and Plan of
Merger (the Merger Agreement) with V.F. Corporation (VF) and VF Enterprises, Inc., a wholly
owned subsidiary of VF (Merger Sub). The Merger Agreement provides that, upon the terms and
subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into
the Company (the Merger), with the Company continuing as the surviving corporation and a wholly
owned subsidiary of VF. Holders of the outstanding shares of the Companys common stock at the
effective time of the Merger will receive $43.00 per share in cash, representing a 43.4% premium
over the closing price of the Companys shares on the New York Stock Exchange on June 10, 2011.
Concurrently with the execution of the Merger Agreement, Sidney W. Swartz, Chairman of the
Companys Board of Directors, Jeffrey B. Swartz, President and Chief Executive Officer of the
Company, and certain other members of their families and certain trusts established for the benefit
of their families or for charitable purposes (collectively, the Supporting Stockholders), who
collectively control approximately 73.5% of the Companys combined voting power, entered into a
Voting Agreement (the Voting Agreement) with VF. The Voting Agreement provides that, so long as
the Voting Agreement has not previously been terminated in accordance with its terms, the
Supporting Stockholders will deliver a written consent adopting the Merger Agreement on July 26,
2011.
The Company may terminate the Merger Agreement to accept a Superior Proposal (as defined in
the Merger Agreement) prior to 11:59 p.m., Boston time, on July 25, 2011. In the event of such
termination, the Voting Agreement, including the obligation of the Supporting Stockholders to
deliver the written consent, will also terminate. Following the delivery of the written consent
contemplated by the Voting Agreement, no further action by any Company stockholder will be required
to adopt the Merger Agreement or approve the Merger.
The Merger Agreement
At the effective time and as a result of the Merger, each outstanding share of the Companys
Class A common stock and Class B common stock (other than shares held by stockholders who have
properly demanded appraisal rights, shares held in treasury by the Company and shares owned by VF
or any subsidiary of VF) will be converted into the right to receive $43.00 in cash, without
interest.
Consummation of the Merger is subject to certain conditions, including (i) the adoption of the
Merger Agreement by the Companys stockholders, (ii) 20 days having elapsed since the mailing to
the Companys stockholders of the definitive information statement with respect to the Merger,
(iii) the absence of any law, order or injunction prohibiting the closing, (iv) the expiration or
termination of the applicable Hart-Scott-Rodino waiting period and receipt of antitrust approvals
in the European Union, (v) material compliance with covenants and, subject to certain exceptions,
the accuracy of representations and warranties and (vi) certain other customary closing conditions.
Consummation of the Merger is not subject to any financing condition.
The Company and VF have made customary representations, warranties and covenants in the Merger
Agreement, including, among others, covenants to use reasonable best efforts to cause the Merger to
be consummated. In addition, the Company has covenanted to conduct its business in the ordinary
course consistent with past practice between the execution of the Merger Agreement and consummation
of the Merger.
The Merger Agreement contains a no-shop provision that prohibits the Company from soliciting
or encouraging competing acquisition proposals. However, prior to 11:59 p.m., Boston time, on July
25, 2011, the Company may, subject to the terms and conditions set forth in the Merger Agreement,
furnish information to, and engage in discussions and negotiations with, a third party that makes
an unsolicited acquisition proposal. Under certain circumstances and upon compliance with certain
notice and other specified conditions set forth in the Merger Agreement, including providing VF
with a five-business day notice period (or three-business day period for subsequent notices) to
match or improve upon any Superior Proposal (as defined in the Merger Agreement), the Company may,
prior to 11:59 p.m., Boston time, on July 25, 2011, terminate the Merger Agreement to accept a
Superior Proposal.
The Merger Agreement contains certain termination rights for both the Company and VF. The
Merger Agreement further provides that, upon termination of the Merger Agreement under specified
circumstances, including if (i) the Companys stockholders do not adopt the Merger Agreement by
11:59 p.m., Boston time, on July 26, 2011 or (ii) the Company terminates the Merger Agreement to
accept a Superior Proposal, the Company would be required to pay VF a termination fee of $87.2
million.
The foregoing description of the Merger Agreement does not purport to be complete and is
qualified in its entirety by reference to the Merger Agreement, which is filed as Exhibit 2.1
hereto.
The Voting Agreement
As noted above, the Supporting Stockholders agreed pursuant to the Voting Agreement that, so
long as the Voting Agreement has not previously terminated in accordance with its terms, they will
deliver on July 26, 2011 (by no later than 11:59 p.m., Boston time, on that date) an irrevocable
written consent with respect to each share of the Companys Class A common stock and Class B common
stock beneficially owned by them (representing in the aggregate approximately 73.5% of the
Companys combined voting power as of June 10, 2011) in favor of adoption of the Merger Agreement
and the approval of the Merger. The Voting Agreement further provides that, during the term of the
Voting Agreement, the Supporting Stockholders will vote (or cause to be voted) all of their shares
of the Companys Class A common stock and Class B common stock against, among other things, any
alternative business combination involving the Company. During the term of the Voting Agreement,
each Supporting Stockholder has also granted an irrevocable proxy appointing VF and any designee of
VF as such Supporting Stockholders attorney-in-fact to vote (or deliver a written consent with
respect to) such Supporting Stockholders shares in accordance with the foregoing.
While the Voting Agreement remains in effect, each Supporting Stockholder is prohibited from
transferring any shares of the Companys Class A common stock and Class B common stock beneficially
owned by such Supporting Stockholder, subject to certain exceptions,
including transfers pursuant to the Merger Agreement. Each Supporting Stockholder has also agreed
not to solicit or encourage competing acquisition proposals, subject to certain limited exceptions.
In addition, in the Voting
Agreement, Sidney W. Swartz and Jeffrey B. Swartz each agreed for
the three-year period after the closing of the Merger not to own or participate in any business or
activity that competes with any business in which the Company is engaged as of the closing of
the Merger. The agreement contains certain limited exceptions, including participating in noncommercial
activities such as corporate social responsibility activities and charitable activities.
The Voting Agreement will terminate upon the earliest of (i) the effective time of the Merger,
(ii) the termination of the Merger Agreement in accordance with its terms and (iii) the
effectiveness of any amendment, modification or supplement to, or waiver under, the Merger
Agreement that would reduce the consideration payable in the Merger, unless consented to in writing
by each Supporting Stockholder.
The foregoing description of the Voting Agreement does not purport to be complete and is
qualified in its entirety by reference to the Voting Agreement, which is filed as Exhibit 2.2
hereto, and is incorporated into this report by reference.
Goldman, Sachs & Co. is
serving as financial advisor to the Company in connection with the
Merger. Ropes & Gray LLP and Richards, Layton and Finger, P.A. are serving as its legal
counsel.
Item 8.01. Other Events.
On June 13, 2011, the Company and VF issued a joint press release announcing the execution of
the Merger Agreement. The press release is attached as Exhibit 99.1 and is incorporated herein by
reference.
Additional Information
The Merger Agreement has been attached as an exhibit to provide investors and security holders
with information regarding its terms. It is not intended to provide any other factual information
about the Company, VF or Merger Sub. The representations, warranties and covenants contained in the
Merger Agreement were made only for the purposes of such agreement and as of specified dates, were
solely for the benefit of the parties to such agreement, and may be subject to limitations agreed
upon by the contracting parties. The representations and warranties may have been made for the
purposes of allocating contractual risk between the parties to the agreement instead of
establishing these matters as facts, and may be subject to standards of materiality applicable to
the contracting parties that differ from those applicable to investors. Investors are not
third-party beneficiaries under the Merger Agreement and should not rely on the representations,
warranties and covenants or any descriptions thereof as characterizations of the actual state of
facts or condition of the Company or VF or any of their respective subsidiaries or affiliates. In
addition, the assertions embodied in the representations and warranties contained in the Merger
Agreement are qualified by information in a confidential disclosure schedule that the parties have
exchanged. Accordingly, investors should not rely on the representations and warranties as
characterizations of the actual state of facts, since (i) they were made only as of the date of
such agreement or a prior, specified date, (ii) in some cases they are subject to qualifications
with respect to materiality, knowledge and/or other matters, and (iii) they may be modified in
important part by the underlying disclosure schedule. Moreover, information concerning the subject
matter of the representations and warranties may change after the date of the Merger Agreement,
which subsequent information may or may not be fully reflected in the Companys or VFs public
disclosures.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits:
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Agreement and Plan of Merger, dated as of June 12, 2011, among the Company, V.F. Corporation
and VF Enterprises, Inc. |
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2.2 |
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Voting Agreement, dated as of June 12, 2011, by and among V.F. Corporation and the
stockholders listed on the signature pages thereto |
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99.1 |
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Joint Press Release dated June 13, 2011 |
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: June 13, 2011
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By:
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/s/ Carrie W. Teffner
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Name:
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Carrie W. Teffner |
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Title:
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Chief Financial Officer |
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EXHIBIT INDEX
2.1 |
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Agreement and Plan of Merger, dated as of June 12, 2011, among the Company, V.F. Corporation
and VF Enterprises, Inc. |
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2.2 |
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Voting Agreement, dated as of June 12, 2011, by and among V.F. Corporation and the
stockholders listed on the signature pages thereto |
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99.1 |
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Joint Press Release dated June 13, 2011 |