Exhibit 1.1
3,261,221 SHARES
THE TIMBERLAND COMPANY
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
UNDERWRITING AGREEMENT
March 3, 2004
March 3, 2004
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
The Selling Shareholders named in Schedule I hereto severally propose
to sell an aggregate of 3,261,221 shares of Class A Common Stock, par value $.01
per share (the "SHARES"), of The Timberland Company, a Delaware corporation (the
"COMPANY"), to Morgan Stanley & Co. Incorporated (the "UNDERWRITER"), each
Selling Shareholder selling the amount set forth opposite such Selling
Shareholder's name in Schedule I hereto.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus (the "BASE
PROSPECTUS"), relating to the Shares, and has filed with, or transmitted for
filing to, or shall promptly hereafter file with or transmit for filing to, the
Commission a final prospectus supplement (the "PROSPECTUS SUPPLEMENT")
specifically relating to the Shares pursuant to Rule 424 under the Securities
Act of 1933, as amended (the "SECURITIES ACT"). The term "REGISTRATION
STATEMENT" means the S-3 Registration Statement, including the exhibits thereto,
as amended to the date of this Agreement. If the Company has filed an
abbreviated registration statement to register additional shares of Common Stock
pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION
STATEMENT"), then any reference herein to the term "REGISTRATION STATEMENT"
shall be deemed to include such Rule 462 Registration Statement. The term
"PROSPECTUS" means the Base Prospectus together with the Prospectus Supplement.
The term "PRELIMINARY PROSPECTUS" means a preliminary prospectus supplement
specifically relating to the Shares, together with the Base Prospectus. All
references to the Registration Statement, Base Prospectus, preliminary
prospectus or Prospectus shall include in each case the documents, if any,
incorporated therein by reference. The terms "SUPPLEMENT" and "AMENDMENT" or
"AMEND" as used in this Agreement with respect to the Registration Statement or
the Prospectus shall include all documents subsequently filed by the Company
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), that are deemed to be incorporated by reference in the
Registration Statement or the Prospectus, including any annual report of the
Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the S-3 Registration
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Statement that is deemed to be incorporated by reference in the Registration
Statement.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to and agrees with the Underwriter that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iii) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information furnished to the Company in writing by the Underwriter for use
therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken
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as a whole; all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and (except for directors' qualifying shares) are
owned directly by the Company, free and clear of all liens, encumbrances,
equities or claims except as described in the Prospectus.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof contained
in the Prospectus.
(g) The shares of Class A Common Stock, $0.01 par value per share,
outstanding on the date hereof have been duly authorized and are validly
issued, fully paid and non-assessable.
(h) The Shares to be sold by the Selling Shareholders have been duly
authorized and are validly issued, fully paid and non-assessable and were
not issued in violation or breach of any preemptive or similar rights.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene
any provision of applicable law or the certificate of incorporation or
by-laws of the Company or any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, except
such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
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which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(m) The Company is not, and after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus will not be, required to register as an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
(n) Except as described in the Prospectus, the Company and its
subsidiaries (i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii) have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(o) Except as described in the Prospectus or reserved for in the
Company's financial statements, there are no costs or liabilities
associated with Environmental Laws (including any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(p) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to
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require the Company to include securities of the Company with the Shares
registered pursuant to the Registration Statement.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS. Each Selling
Shareholder represents and warrants to and agrees with the Underwriter that:
(a) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and the
performance by such Selling Shareholder of its obligations under, this
Agreement and, if such Selling Shareholder is an individual, a Power of
Attorney appointing one or more individuals as such Selling Shareholder's
attorneys-in-fact to the extent set forth therein and relating to the
transactions contemplated hereby and by the Registration Statement (with
respect to such Selling Shareholder, the "POWER OF ATTORNEY") will not
contravene any provision of applicable law, or the certificate of
incorporation or by-laws of such Selling Shareholder (if such Selling
Shareholder is a corporation), or any agreement or other instrument binding
upon such Selling Shareholder or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over such Selling
Shareholder, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by such Selling Shareholder of its obligations under this
Agreement or the Power of Attorney (if any) of such Selling Shareholder,
except such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Shares.
(c) Such Selling Shareholder has, and on the Closing Date will have,
valid title to, or a valid "security entitlement" within the meaning of
Section 8-501 of the New York Uniform Commercial Code in respect of, the
Shares to be sold by such Selling Shareholder free and clear of all
security interests, claims, liens, equities or other encumbrances and the
legal right and power, and all authorization and approval required by law,
to enter into this Agreement and the Power of Attorney (if any) and to
sell, transfer and deliver the Shares to be sold by such Selling
Shareholder or a security entitlement in respect of such Shares.
(d) If such Selling Shareholder is an individual, the Power of
Attorney has been duly authorized, executed and delivered by such Selling
Shareholder and is a valid and binding agreement of such Selling
Shareholder. A copy of the Power of Attorney has been delivered to the
Underwriter prior to the date hereof.
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(e) Delivery of the Shares represented by certificates to be sold by
such Selling Shareholder and payment therefor pursuant to this Agreement
will pass valid title to such Shares, free and clear of any adverse claim
within the meaning of Section 8-102 of the New York Uniform Commercial
Code, to the Underwriter if the Underwriter has purchased such Shares
without notice of an adverse claim.
(f) Upon payment for the Shares not represented by certificates to be
sold by such Selling Shareholder pursuant to this Agreement, delivery of
such Shares, as directed by the Underwriter, to Cede & Co. ("CEDE") or such
other nominee as may be designated by the Depository Trust Company ("DTC"),
registration of such Shares in the name of Cede or such other nominee and
the crediting of such Shares on the books of DTC to securities accounts of
the Underwriter (assuming that neither DTC nor the Underwriter has notice
of any adverse claim (within the meaning of Section 8-105 of the New York
Uniform Commercial Code (the "UCC")) to such Shares), (A) DTC shall be a
"protected purchaser" of such Shares within the meaning of Section 8-303 of
the UCC, (B) under Section 8-501 of the UCC, the Underwriter will acquire a
valid security entitlement in respect of such Shares and (C) no action
based on any "adverse claim", within the meaning of Section 8-102 of the
UCC, to such Shares may be asserted against the Underwriter with respect to
such security entitlement; for purposes of this representation, such
Selling Shareholder may assume that when such payment, delivery and
crediting occur, (x) such Shares will have been registered in the name of
Cede or another nominee designated by DTC, in each case on the Company's
share registry in accordance with its certificate of incorporation, bylaws
and applicable law, (y) DTC will be registered as a "clearing corporation"
within the meaning of Section 8-102 of the UCC and (z) appropriate entries
to the account of the Underwriter on the records of DTC will have been made
pursuant to the UCC.
(g) To the extent that any statements or omissions made in the
Registration Statement, the Prospectus or any amendment or supplement
thereto are made in reliance upon and in conformity with written
information furnished to the Company by such Selling Shareholder expressly
for use therein, the Registration Statement did, and the Prospectus and any
further amendments or supplements to the Registration Statement and the
Prospectus, when they become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act and the rules and regulations of the Commission thereunder and
will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading.
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3. AGREEMENTS TO SELL AND PURCHASE. Each Selling Shareholder, severally and
not jointly, hereby agrees to sell to the Underwriter, and the Underwriter, upon
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees, to purchase from such Selling
Shareholder at $60.81 a share (the "PURCHASE PRICE") the number of Shares set
forth in Schedule I hereto opposite the name of such Selling Shareholder.
Each Selling Shareholder hereby agrees that, without the prior written
consent of the Underwriter, it will not, during the period ending 60 days after
the date of the Prospectus, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any shares of Class A Common Stock or any securities
convertible into or exercisable or exchangeable for Class A Common Stock or (ii)
enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Class A Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Class A Common Stock or such other securities, in cash
or otherwise.
The Company hereby agrees that, without the prior written consent of the
Underwriter, it will not, during the period ending 90 days after the date of the
Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, any shares of Class A Common Stock or any securities
convertible into or exercisable or exchangeable for Class A Common Stock or (ii)
enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Class A Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Class A Common Stock or such other securities, in cash
or otherwise.
The restrictions contained in the two preceding paragraphs shall not apply
to (A) the Shares to be sold hereunder, (B) the grant by the Company of stock
options or other awards pursuant to employee incentive plans existing on the
date of this Agreement that do not vest during such 90-day period, or to
employees of the Company hired on or after the date of this Agreement in the
ordinary course of the Company's business, (C) the issuance by the Company or
the purchase by the Selling Shareholders of shares of Class A Common Stock upon
the exercise of an option or warrant or the conversion of a security outstanding
on the date hereof, (D) transactions by any person relating to shares of Class A
Common Stock or other securities acquired in open market transactions after the
completion of the offering of the Shares, (E) bona fide gifts of Class A Common
Stock by the Selling Shareholders, PROVIDED that no Selling Shareholder shall
transfer more than an aggregate of 100,000 shares of Class A Common Stock
pursuant to this clause (E), (F) transfers between any Selling Shareholder (or
any member of the
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immediate family of any Selling Shareholder) and any trust for the direct or
indirect benefit of any Selling Shareholder (or for the benefit of a member of
the immediate family of any Selling Shareholder), PROVIDED that the transferee
agrees to be bound by the restrictions set forth in this Section or (G) any sale
of shares of Class A Common Stock pursuant to written plans adopted pursuant to
Rule 10b5-1 under the Exchange Act to the extent that such plans were
implemented prior to the date hereof and that copies of such plans have been
provided to the Underwriter prior to the date hereof. In addition, each Selling
Shareholder, agrees that, without the prior written consent of the Underwriter,
it will not, during the period ending 60 days after the date of the Prospectus,
make any demand for, or exercise any right with respect to, the registration of
any shares of Class A Common Stock or any security convertible into or
exercisable or exchangeable for Class A Common Stock.
4. TERMS OF PUBLIC OFFERING. The Selling Shareholders are advised by you
that the Underwriter proposes to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable. The Selling
Shareholders are further advised by you that the Shares are to be offered to the
public initially at $61.10 a share (the "PUBLIC OFFERING PRICE").
5. PAYMENT AND DELIVERY. Payment for the Shares to be sold by each Selling
Shareholder shall be made to such Selling Shareholder in Federal or other funds
immediately available in New York City against delivery of such Shares to you at
10:00 a.m., New York City time, on March 8, 2004. The time and date of such
payment are hereinafter referred to as the "CLOSING DATE."
The Shares shall be registered in such names and in such denominations as
you shall request in writing not later than one full business day prior to the
Closing Date. The Shares shall be delivered to you on the Closing Date with any
transfer taxes payable in connection with the transfer of the Shares to the
Underwriter duly paid, against payment of the Purchase Price therefor.
6. CONDITIONS TO THE UNDERWRITER'S OBLIGATIONS. The obligations of the
Selling Shareholders to sell the Shares to the Underwriter and the obligations
of the Underwriter to purchase and pay for the Shares on the Closing Date are
subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement) that, in your judgment, is material and adverse and that
makes it, in your judgment, impracticable to
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market the Shares on the terms and in the manner contemplated in the
Prospectus.
(b) The Underwriter shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 6(a) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date. The officer signing and delivering such certificate may
rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriter shall have received on the Closing Date an opinion
of Ropes & Gray LLP, outside counsel for the Company and counsel to the
Selling Shareholders, dated the Closing Date, in the form attached hereto
as Exhibit 6(c). Such opinion shall be rendered to the Underwriter at the
request of the Company and the Selling Shareholders and shall so state
therein.
(d) The Underwriter shall have received on the Closing Date an opinion
of Hale and Dorr LLP, counsel for the Underwriter, dated the Closing Date,
covering the matters referred to in paragraph 2 (but only as to the second
sentence thereof), paragraph 3, the third-to-last paragraph and the
penultimate paragraph (but only as to the statements in the Prospectus
under "Underwriter") of the opinion attached hereto as Exhibit 6(c).
(e) The Underwriter shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriter,
from Deloitte & Touche LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to the Underwriter with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus; PROVIDED that the letter delivered on the
Closing Date shall use a "cut-off date" not earlier than the date hereof.
7. COVENANTS OF THE COMPANY. In further consideration of the agreements of
the Underwriter herein contained, the Company covenants with the Underwriter as
follows:
(a) To furnish to you, without charge, two signed copies of the
Registration Statement (including exhibits thereto) and to furnish to you
in New York City, without charge, prior to 10:00 a.m. New York City time
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on the business day next succeeding the date of this Agreement and during
the period mentioned in Section 7(c) below, as many copies of the
Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public offering
of the Shares as in the opinion of counsel for the Underwriter the
Prospectus is required by law to be delivered in connection with sales by
the Underwriter, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriter, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to
prepare, file with the Commission and furnish, at its own expense, to the
Underwriter either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
8. EXPENSES. Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, the Company agrees to pay or
cause to be paid all expenses incident to the performance of the obligations of
the Company and the Selling Shareholders under this Agreement, including: (i)
the fees, disbursements and expenses of the Company's counsel, the Company's
accountants and counsel for the Selling Shareholders in connection with the
registration and delivery of the Shares under the Securities Act and all other
fees or expenses in connection with the preparation and filing of
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the Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriter, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Shares to the Underwriter,
including any transfer or other taxes payable thereon, (iii) the cost of
printing or producing any Blue Sky or Legal Investment memorandum in connection
with the offer and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer and sale
under state securities laws as provided in Section 7(d) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriter in
connection with such qualification and in connection with the Blue Sky or Legal
Investment memorandum, (iv) all filing fees and the reasonable fees and
disbursements of counsel to the Underwriter incurred in connection with the
review and qualification of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) the cost of printing certificates
representing the Shares, (vi) the costs and charges of any transfer agent,
registrar or depositary, (vii) the document production charges and expenses
associated with printing this Agreement and (viii) all other costs and expenses
incident to the performance of the obligations of the Company hereunder for
which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 9 entitled "Indemnity
and Contribution", and the second paragraph of Section 11 below, the Underwriter
will pay all of their costs and expenses, including fees and disbursements of
their counsel, stock transfer taxes payable on resale of any of the Shares by
them and any advertising expenses connected with any offers they may make.
The provisions of this Section shall not supersede or otherwise affect any
agreement that the Company and the Selling Shareholders may otherwise have for
the allocation of such expenses among themselves.
9. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the Underwriter,
each person, if any, who controls the Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act,
and each affiliate of the Underwriter within the meaning of Rule 405 under
the Securities Act, from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be
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stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished to the Company in writing by the
Underwriter for use therein.
(b) Each Selling Shareholder, severally and not jointly, agrees to
indemnify and hold harmless the Underwriter, each person, if any, who
controls the Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, and each affiliate of the
Underwriter within the meaning of Rule 405 under the Securities Act, from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that any such untrue statement or
omission or alleged untrue statement or omission was made in the Prospectus
or the Registration Statement in reliance upon and in conformity with
written information furnished to the Company by such Selling Shareholder
expressly for use therein. The liability of each Selling Shareholder (i)
under the indemnity agreement contained in this Section 9(b), (ii) arising
from such Selling Shareholder's breach of such Selling Shareholder's
representations and warranties set forth in Section 2(g) hereof, and (iii)
for contribution pursuant to Sections 9(e) and 9(f), shall be limited to an
amount equal to the aggregate Public Offering Price of the Shares sold by
such Selling Shareholder under this Agreement.
(c) The Underwriter agrees to indemnify and hold harmless the Company,
the Selling Shareholders, the directors of the Company, the officers of the
Company who sign the Registration Statement and each person, if any, who
controls the Company or any Selling Shareholder within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated
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therein or necessary to make the statements therein not misleading, but
only with reference to information furnished to the Company in writing by
the Underwriter expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for (i) the fees and expenses of more
than one separate firm (in addition to any local counsel) for the
Underwriter and all persons, if any, who control the Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act or who are affiliates of the Underwriter within the meaning of
Rule 405 under the Securities Act, (ii) the fees and expenses of more than
one separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either such
Section and (iii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Selling Shareholders and all
persons, if any, who control any Selling Shareholder within the meaning of
either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for
the Underwriter and such control persons and affiliates of the Underwriter,
such firm shall be designated in writing by the Underwriter. In the case of
any such separate firm for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in writing by
the Company. In the case of any such separate firm for the Selling
Shareholders and such control persons of any Selling
-13-
Shareholders, such firm shall be designated in writing by Selling
Shareholders that sold a majority of the Shares under this Agreement. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second and third sentences
of this paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by
such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in Section 9(a),
9(b) or 9(c) is unavailable under applicable law to an indemnified party or
insufficient under applicable law in respect of any losses, claims, damages
or liabilities referred to therein for which indemnification would
otherwise have been available, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party
or parties on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause 9(d)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 9(d)(i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Selling Shareholders and the Company on the one hand and
the Underwriter on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the
gross proceeds (before deducting expenses) received by each Selling
Shareholder and the difference between the gross proceeds received by the
-14-
Underwriter from the offering of the Shares and the gross proceeds received
by the Selling Shareholders. The relative fault of the Selling Shareholders
and the Company on the one hand and the Underwriter on the other hand shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Selling Shareholders and the Company or by the Underwriter and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(f) The Company, the Selling Shareholders and the Underwriter agree
that it would not be just or equitable if contribution pursuant to this
Section 9 were determined by PRO RATA allocation or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 9(c). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that the
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 9 are not exclusive and shall not limit any rights or
remedies that may otherwise be available to any indemnified party at law or
in equity.
(g) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the
Company and the Selling Shareholders contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of the Underwriter, any person controlling the Underwriter or any affiliate
of the Underwriter, any Selling Shareholder or any person controlling any
Selling Shareholder, or the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any
of the Shares.
-15-
10. TERMINATION. The Underwriter may terminate this Agreement by notice
given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of hostilities, or any
change in financial markets or any calamity or crisis that, in your judgment, is
material and adverse and which, singly or together with any other event
specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Shares on the
terms and in the manner contemplated in the Prospectus.
11. EFFECTIVENESS. This Agreement shall become effective upon the execution
and delivery hereof by the parties hereto.
If this Agreement shall be terminated by the Underwriter because of any
failure or refusal on the part of the Company or any Selling Stockholder to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company or any Selling Stockholder shall be unable to
perform its obligations under this Agreement, the Company will reimburse the
Underwriter, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by the Underwriter in
connection with this Agreement or the offering contemplated hereunder.
12. COUNTERPARTS. This Agreement may be signed in two or more counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
14. CONSTRUCTION. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement. The word "including" as used herein shall not be construed so as
to exclude any other thing not referred to or described.
-16-
Very truly yours,
The Timberland Company
By: /s/ Brian P. McKeon
----------------------------------
Name: Brian P. McKeon
Title: Chief Financial Officer
Signature page for Morgan Stanley
Underwriting Agreement
Julie Swartz
By: /s/ Brian P. McKeon
---------------------------------
Name: Brian P. McKeon
Attorney-in-Fact for Julie Swartz
The Swartz Foundation
By: /s/ John E. Beard
----------------------------------
Name: John E. Beard
Title: Trustee
The Sidney W. Swartz 1982 Family Trust
-f/b/o Jeffrey Swartz
By: /s/ John E. Beard
----------------------------------
Name: John E. Beard
Title: Trustee
By: /s/ Judith H. Swartz
-----------------------------------
Name: Judith H. Swartz
Title: Trustee
The Sidney W. Swartz 1982 Family Trust
-f/b/o David Swartz
By: /s/ John E. Beard
----------------------------------
Name: John E. Beard
Title: Trustee
By: /s/ Judith H. Swartz
-----------------------------------
Name: Judith H. Swartz
Title: Trustee
Signature page for Morgan Stanley
Underwriting Agreement
The Sidney W. Swartz 1982 Family Trust
-f/b/o Julie Swartz
By: /s/ John E. Beard
----------------------------------
Name: John E. Beard
Title: Trustee
By: /s/ Judith H. Swartz
-----------------------------------
Name: Judith H. Swartz
Title: Trustee
Signature page for Morgan Stanley
Underwriting Agreement
Accepted as of the date hereof
By: Morgan Stanley & Co. Incorporated
By: /s/ Joseph P. Coleman
---------------------------------
Name: Joseph P. Coleman
Title: Managing Director
Signature page for Morgan Stanley
Underwriting Agreement
SCHEDULE I
- ----------------------------------------------------- -----------------
NUMBER OF
SHARES
SELLING SHAREHOLDERS TO BE SOLD
The Swartz Foundation....................................... 1,000,000
The Sidney W. Swartz 1982 Family Trust--Jeffrey Swartz...... 500,000
The Sidney W. Swartz 1982 Family Trust--David Swartz........ 767,377
The Sidney W. Swartz 1982 Family Trust--Julie Swartz........ 950,842
Julie Swartz................................................ 43,002
---------
Total.............................................. 3,261,221
=========
Morgan Stanley & Co. Incorporated -3- March 8, 2004
EXHIBIT 6(C)
March 8, 2004
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Re: Shares of Class A Common Stock of The Timberland Company
Ladies and Gentlemen:
We have acted as counsel for The Timberland Company, a Delaware
corporation (the "Company") and the selling stockholders listed on Annex I (the
"Selling Stockholders"), in connection with the sale by the Selling Stockholders
of 3,261,221 shares (the "Shares") of the Company's Class A Common Stock, $0.01
par value per share (the "Class A Common Stock"). This opinion is furnished to
you pursuant to Section 6(c) of the underwriting agreement dated March 3, 2004
(the "Underwriting Agreement"), among the Company, the Selling Stockholders and
you relating to the sale of the Shares. Terms defined in the Underwriting
Agreement and not otherwise defined herein are used herein with the meanings so
defined.
We have attended the Closing of the sale of the Shares held today. We
have examined signed copies of the registration statement of the Company on Form
S-3 (No. 333-112254), together with all exhibits thereto (the "Registration
Statement"), all as filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"); the
documents filed by the Company under the Securities Exchange Act of 1934, as
amended, that are incorporated by reference in the prospectus; a copy of the
prospectus dated January 27, 2004 (the "Base Prospectus") and the prospectus
supplement dated March 3, 2004 to the Base Prospectus filed with the Commission
pursuant to Rule 424 under the Act (together with the Base Prospectus, the
"Prospectus"); a Power of Attorney executed and delivered by each Selling
Stockholder who is an individual; an executed copy of the Underwriting
Agreement; and such other documents as we have deemed appropriate in order to
enable us to render the opinions expressed herein. Additionally, we have relied
upon oral advice from the staff of the Commission to the effect that the
Registration Statement became effective on February 9, 2004.
We express no opinion as to the laws of any jurisdiction other than
those of The Commonwealth of Massachusetts, the General Corporation Law of the
State of Delaware, the federal laws of the United States of America and, solely
with respect to the opinions set forth in paragraphs 10 and 11 below, the
Uniform Commercial Code of the State of New York (the "UCC"). Our opinion in the
second sentence of paragraph 1 as to the foreign qualification of The Timberland
Company is based solely on a certificate of good standing issued by the
Morgan Stanley & Co. Incorporated -4- March 8, 2004
Secretary of State of each jurisdiction listed on Annex II, and our opinion with
respect to such matters is rendered as of the dates of such certificates and is
limited accordingly.
Insofar as this opinion relates to factual matters, information with
respect to which is in the possession of the Company or the Selling
Stockholders, we have made inquiries to the extent we believe reasonable about
such matters and have relied upon representations made by the Company and by
such Selling Stockholders in the Underwriting Agreement and representations made
to us by one or more officers of the Company and by such Selling Stockholders.
Although we have not independently verified the accuracy of such
representations, we do not know of the existence or absence of any fact
contradicting such representations. With respect to our opinion set forth in
paragraph 4 below, we have not searched the dockets of any court, administrative
body, agency or other filing office in any jurisdiction.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is a validly existing
corporation in good standing under the laws of the state of Delaware, with
corporate power to own its properties and conduct its business as described in
the Prospectus. The Company is qualified as a foreign corporation in each
jurisdiction listed on Annex II.
2. The authorized capital stock of the Company is as set forth in the
Prospectus. The Shares have been duly authorized, validly issued and fully paid
and are non-assessable. The Shares were not issued in contravention of any
preemptive or similar right contained in the Certification of Incorporation or
By-Laws of the Company.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
4. The execution and delivery of the Underwriting Agreement by the Company
and each Selling Stockholder and the sale of the Shares by each such Selling
Stockholder will not (i) violate the Certificate of Incorporation or By-Laws
of the Company, (ii) violate the Trust Agreement of such Selling Stockholder
if such Selling Stockholder is a trust, (iii) breach or result in a default
by the Company under any agreement or instrument listed as an Exhibit to the
Registration Statement or (iv) violate the General Corporation Law of the
State of Delaware, any applicable Massachusetts or United States federal law
or regulation, or any order, writ, injunction or decree specifically naming
the Company, except that we express no opinion as to state securities or blue
sky laws or as to compliance with the antifraud provisions of federal and
state securities laws.
5. No authorizations or consents of any United States federal or
Massachusetts governmental entity are required to permit the Selling
Stockholders to sell the Shares except such as may be required under state
securities or blue sky laws, as to which we express no opinion, and except
for such as have been obtained under the Act.
6. To our knowledge no holder of any security of the Company has the right to
require registration of shares of Class A Common Stock of the Company in
connection with the registration of the Shares.
Morgan Stanley & Co. Incorporated -5- March 8, 2004
7. The Company is not subject to regulation as an "investment company" under
the Investment Company Act of 1940, as amended.
8. The Underwriting Agreement has been duly authorized, executed and
delivered by each of the Selling Stockholders either on its own behalf or, in
the case of Julie Swartz, through a duly authorized attorney-in-fact.
9. A Power of Attorney has been duly authorized, executed and delivered by
Julie Swartz, and, pursuant to such Power of Attorney, Julie Swartz has
authorized her attorney-in-fact to carry out transactions contemplated in the
Underwriting Agreement on her behalf, and to deliver the Shares being sold by
her pursuant to the Underwriting Agreement.
10. With respect to Shares represented by security certificates, upon payment
by the Underwriters of the purchase price in accordance with the Underwriting
Agreement and delivery of security certificates for such Shares being sold by
the Selling Stockholders endorsed to the Underwriters and assuming that the
Underwriter has no notice of an adverse claim within the meaning of Section
8-105 of the UCC, the Underwriters will acquire such Shares free of any adverse
claim (as defined in Section 8-102 of the UCC).
11. With respect to Shares held indirectly by the Selling Stockholders
through Depository Trust Company or another securities intermediary, upon
payment by the Underwriter of the purchase price in accordance with the
Underwriting Agreement and delivery of such Shares at the Underwriter's
direction to Cede & Co., as nominee for Depository Trust Company or another
securities intermediary for the Underwriter, indication by book entry in the
records of the securities intermediary that such Shares have been credited to
the Underwriter's securities account and assuming that neither the
Underwriter nor any securities intermediary has notice of an adverse claim
within the meaning of Section 8-105 of the UCC, the securities intermediary
will acquire such Shares free of any adverse claim (as defined in Section
8-102 of the UCC), the Underwriter will acquire a security entitlement in
respect of such Shares and no action based on any adverse claim (as defined
in Section 8-102 of the UCC) may be asserted against the Underwriter.
The Registration Statement became effective on February 9, 2004. We do not
know of the issuance of any stop order suspending the effectiveness of the
Registration Statement by the Commission or of any proceeding for that purpose
under the Act.
In the course of the preparation by the Company of the Registration
Statement and the Prospectus, we have participated in discussions with your
representatives and those of the Company and its independent accountants, in
which the business and affairs of the Company and the contents of the
Registration Statement and the Prospectus were discussed. On the basis of
information that we have gained in the course of our representation of the
Company in connection with its preparation of the Registration Statement and the
Prospectus and our participation in the discussions referred to above, we
believe that the Registration Statement, as of its effective date, and the
Prospectus, as of its date, complied as to form in all material respects with
the requirements of the Act and the rules and regulations of the Commission
thereunder, and we do not know of any legal or governmental proceeding to which
the Company or any of its subsidiaries is a party or to which any of their
property is subject required to be described in the Prospectus which is not so
described, nor of any contract or other document of a character required to be
Morgan Stanley & Co. Incorporated -6- March 8, 2004
described in the Prospectus or to be filed as an exhibit to the Registration
Statement which is not so described or filed. Further, based on such information
and participation, and our review of the documents incorporated by reference in
the Prospectus, nothing that has come to our attention has caused us to believe
that (i) the documents incorporated by reference in the Prospectus, at the time
such documents became effective or were filed with the Commission, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and (ii) as of its effective date the Registration Statement
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus as of its date or as of the date
hereof contained or contains any untrue statement of a material fact or omitted
or omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. We
express no opinion, however, as to the financial statements, including the notes
and schedules thereto, or any other financial or accounting information set
forth or referred to in the Registration Statement or the Prospectus or the
documents incorporated by reference therein.
The limitations inherent in the independent verification of factual matters
and the nature of the determinations involved in our review are such that we do
not assume any responsibility for the accuracy, completeness or fairness of the
statements made or the information contained in the Registration Statement or
Prospectus except for those made under the captions "Description of Capital
Stock," "Plan of Distribution" and "Underwriting", which accurately summarize in
all material respects the provisions of the United States federal laws and the
General Corporation Law of the State of Delaware, the Shares and documents
referred to therein.
Except as otherwise expressly consented to by us in writing, this opinion
is solely for your benefit.
Very truly yours,
Ropes & Gray LLP
Annex I
SELLING STOCKHOLDERS
The Swartz Foundation
The Sidney W. Swartz 1982 Family Trust - Jeffrey Swartz
The Sidney W. Swartz 1982 Family Trust - David Swartz
The Sidney W. Swartz 1982 Family Trust - Julie Swartz
Julie Swartz
Annex II
FOREIGN JURISDICTIONS
New Hampshire
California