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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 6, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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RUSS BERRIE AND COMPANY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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NEW JERSEY 22-1815337
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
111 BAUER DRIVE
OAKLAND, NEW JERSEY 07436
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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RUSS BERRIE AND COMPANY, INC. 1994 STOCK OPTION PLAN FOR OUTSIDE DIRECTORS
RUSS BERRIE AND COMPANY, INC. 1994 STOCK OPTION AND RESTRICTED STOCK PLAN
RUSS BERRIE AND COMPANY, INC. 1994 STOCK OPTION PLAN
RUSS BERRIE AND COMPANY, INC. 1994 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLES OF THE PLANS)
RUSSELL BERRIE
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
RUSS BERRIE AND COMPANY, INC.
111 BAUER DRIVE
OAKLAND, NEW JERSEY 07436
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(201) 337-9000
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy to:
STEPHEN C. KOVAL, ESQ.
KAYE, SCHOLER, FIERMAN,
HAYS & HANDLER
425 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 836-8000
CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM
OFFERING PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT TO BE PRICE PER AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED SHARE PRICE FEE
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Common Stock, stated value $.10
per share.................... 3,800,000 shares $14.875(1) $56,525,000(1) $19,491.52(1)
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(1) The offering price has been computed pursuant to Rules 457(c) and 457(h)(1)
promulgated under the Securities Act of 1933, as amended, upon the basis of
the high and low prices of the Common Stock reported on the New York Stock
Exchange on January 4, 1994.
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PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, or portions thereof, filed with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
1. Russ Berrie and Company, Inc.'s (the "Company") Annual Report on
Form 10-K for the year ended December 31, 1992.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1993.
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1993.
4. The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1993.
5. The description of the common stock, stated value $.10 per share,
of the Company (the "Common Stock") incorporated into the Registration
Statement on Form 8-A No. 1-8681 (as filed on March 8, 1984) by reference
from the Registration Statement on Form S-1 No. 2-88797 (as filed on
February 2, 1984) under the heading "Description of Common Stock" on pages
21-22, as amended by Amendment No. 2 to Registration Statement on Form S-1
No. 2-88797 (as filed on March 29, 1984) under the heading "Description of
Common Stock" on page 22.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (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 incorporated by reference herein and to be a
part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14A:3-5 of the Business Corporation Act of the State of New Jersey
(the "Statute") permits a corporation to indemnify its present and former
directors, officers, employees and certain agents (each, a "Corporate Agent")
against expenses (including attorneys' fees), judgments, fines, penalties and
settlements paid or incurred by them in connection with any action, suit or
proceeding brought by third parties, if such Corporate Agent 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 proceeding, had
no reasonable cause to believe his conduct was unlawful. In a derivative action,
i.e., one by or in the right of the corporation, indemnification may be made
only for expenses, and only with respect to a matter as to which the defendant
Corporate Agent shall have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation. No
indemnification shall be made if such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Superior Court
of the State of New Jersey or the court in which such action, suit or proceeding
was brought determines upon application that the defendant Corporate Agent is
fairly and reasonably entitled to indemnity for such expenses as the Superior
Court or such other court deems proper. In any case, a corporation must
indemnify a Corporate Agent against expenses (including attorneys' fees) to the
extent that he has been successful on the merits or otherwise or in defense of
any claim or issue. Expenses incurred by a Corporate Agent in connection with a
proceeding may be paid by the Company in advance of the final disposition of the
proceeding as authorized by the board of directors upon receipt of an
undertaking by or on behalf of the Corporate Agent to repay such amounts if it
shall ultimately be determined that he is not entitled to be indemnified as
provided in the Statute. The Company's certificate
II-1
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of incorporation provides for indemnification of directors and officers to the
full extent permitted by these provisions. The Company maintains an insurance
policy insuring its directors and officers against certain liabilities incurred
in those capacities, including liabilities which may be incurred under the
Securities Act of 1933, as amended (the "Securities Act").
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following are filed as exhibits to this registration statement:
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EXHIBITS DESCRIPTION
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4.1 Russ Berrie and Company, Inc. 1994 Stock Option Plan for Outside Directors.
Incorporated by reference herein from Exhibit 10.105 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1992 ("1992 Form 10-K").
4.2 Russ Berrie and Company, Inc. 1994 Stock Option and Restricted Stock Plan.
Incorporated by reference herein from Exhibit 10.106 to the 1992 Form 10-K.
4.3 Russ Berrie and Company, Inc. 1994 Stock Option Plan. Incorporated by reference
herein from Exhibit 10.104 to the 1992 Form 10-K.
4.4 Russ Berrie and Company, Inc. 1994 Employee Stock Purchase Plan. Incorporated by
reference herein from Exhibit 10.107 to the 1992 Form 10-K.
4.5(a) Restated Certificate of Incorporation of the Company and amendment thereto.
Incorporated by reference herein from Exhibit 3.1 to Registration Statement No.
33-10077 on Form S-1, as filed on December 16, 1986 ("S-1 Registration
Statement").
(b) Certificate of Amendment to the Restated Certificate of Incorporation of the
Company filed April 30, 1987.
4.6(a) Revised By-Laws of the Company. Incorporated by reference herein from Exhibit 3.2
to S-1 Registration Statement.
(b) Amendment to Revised By-Laws of the Company adopted April 30, 1987
(c) Amendment to Revised By-Laws of the Company adopted February 18, 1988
5.1 Opinion of Messrs. Kaye, Scholer, Fierman, Hays & Handler.
23.1 Consent of Independent Accountants.
23.2 Consent of Messrs. Kaye, Scholer, Fierman, Hays & Handler. Contained in such
firm's opinion filed as Exhibit 5.1 hereto.
24.1 Power of Attorney of Directors included on the signature page at page II-5.
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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 to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement.
2. 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 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.
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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 Sections 13(a) or 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 this 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 Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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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 Oakland, State of New Jersey, on January 6, 1994.
RUSS BERRIE AND COMPANY, INC.
By: /s/ A. CURTS COOKE
Name: A. Curts Cooke
Title: President, Chief
Operating Officer and Director
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby authorizes each of Russell Berrie, A. Curts Cooke and James A. Madonna,
Jr., as attorney-in-fact, to sign and file on his behalf, individually and in
each capacity stated below, any pre-effective or post-effective amendment
hereto.
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SIGNATURE TITLE DATE
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/s/ RUSSELL BERRIE Chairman of the Board, Chief December 31, 1993
- ---------------------------------------- Executive Officer and
Russell Berrie Director (principal executive
officer)
/s/ A. CURTS COOKE President, Chief Operating December 31, 1993
- ---------------------------------------- Officer and Director
A. Curts Cooke
/s/ PAUL CARGOTCH Vice President -- Finance and December 31, 1993
- ---------------------------------------- Chief Financial Officer
Paul Cargotch (principal financial and
accounting officer)
Director December , 1993
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Raphael Benaroya
/s/ ARTHUR D. CHARPENTIER Director December 31, 1993
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Arthur D. Charpentier
/s/ JIMMY HSU Director December 31, 1993
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Jimmy Hsu
Director December , 1993
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Charles Klatskin
/s/ JOSEPH KLING Director December 31, 1993
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Joseph Kling
Director December , 1993
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James A. Madonna, Jr.
Director December , 1993
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Sidney Slauson
/s/ BERNARD H. TENENBAUM Director December 31, 1993
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Bernard H. Tenenbaum
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II-5
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EXHIBIT INDEX
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EXHIBIT DESCRIPTION PAGE
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4.5(b) Certificate of Amendment to Restated Certificate of Incorporation of the
Company filed April 30, 1987.
4.6(b) Amendment to Revised By-Laws of the Company adopted April 30, 1987.
4.6(c) Amendment to Revised By-Laws of the Company adopted February 18, 1988.
5.1 Opinion of Messrs. Kaye, Scholer, Fierman, Hays & Handler..................
23.1 Consent of Independent Accountants.........................................
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EXHIBIT 4.5(B)
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
RUSS BERRIE AND COMPANY, INC.
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SECRETARY OF STATE FEDERAL EMPLOYER IDENTIFICATION NUMBER
STATE OF NEW JERSEY 22-1815337
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Pursuant to the provisions of Section 14A:9-2(4) and Section 14A:9-4(3).
Corporations, General, of the New Jersey Statutes, the undersigned corporation
executes the following Certificate of Amendment to its Restated Certificate of
Incorporation.
1. The name of the corporation is Russ Berrie and Company, Inc.
2. The following Amendment to the Restated Certificate of Incorporation
was approved by the directors, and thereafter duly adopted by the shareholders
of the Corporation on the 30th day of April 1987.
RESOLVED, that Article Tenth of the Restated Certificate of Incorporation
be amended to read as follows:
TENTH. To the full extent from time to time permitted by law, no
director or officer of the Corporation shall be personally liable to
the Corporation or its shareholders for damages for breach of any duty
owed to the Corporation or its shareholders. Neither the amendment or
repeal of this Article, nor the adoption of any provision of this
Certificate of Incorporation inconsistent with this Article, shall
eliminate or reduce the protection afforded by this Article to a
director or officer of the Corporation with respect to any matter
which occurred, or any cause of action, suit or claim which but for
this Article would have accrued or arisen, prior to such amendment,
repeal or adoption.
3. The number of shares outstanding at the time of the adoption of the
Amendment was 14,964,315. The total number of shares entitled to vote thereon
was 14,964,315.
4. The number of shares voting for and against such Amendment is as
follows:
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NUMBER OF SHARES VOTING NUMBER OF SHARES VOTING
FOR AMENDMENT AGAINST AMENDMENT
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11,463,975 214,984
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5. The effective date of this Amendment of the Restated Certificate of
Incorporation shall be April 30, 1987.
RUSS BERRIE AND COMPANY, INC.
/s/ A. CURTS COOKE
A. Curts Cooke
Executive Vice President
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EXHBIT 4.6(B)
RUSS BERRIE AND COMPANY, INC.
RESOLUTION 87-11
AMENDMENT TO BYLAWS: NUMBER OF DIRECTORS
At the regular meeting of the Board of Directors held on April 30, 1987, at
the Woodcliff Lake Hilton, Woodcliff Lake, New Jersey, it was unanimously:
RESOLVED, that the Revised Bylaws of Russ Berrie and Company, Inc. be
amended as follows:
"Para. 2.1 Number , Qualification, Election and Term of Directors. The
business of the corporation shall be managed by the Board, which shall
consist of no more than twelve directors who shall be at least 18 years
old. The number of directors may be changed by resolution of a majority
of the entire Board or by the shareholders, but no decrease may shorten
the term of any incumbent director. Directors shall be elected at each
annual meeting of shareholders by a plurality of the votes cast and
shall hold office until the next annual meeting of shareholders and
until the election and qualification of their respective successors,
subject to the provisions of Section 2.7. As used in these Bylaws, the
term "entire Board" means the total number of directors which the
corporation would have if there were no vacancies on the Board."
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EXHIBIT 4.6(C)
RUSS BERRIE AND COMPANY, INC.
RESOLUTION 88-
BY-LAWS AMENDMENT
At the regular meeting of the Board of Directors held on February 18, 1988,
at the Boca Raton Hotel, 501 East Camino Real, Boca Raton, Florida, it was
unanimously:
RESOLVED, that the Revised By-Laws of Russ Berrie and Company, Inc. be
amended as follows:
"Para 1.1 Annual Meeting -- The annual meeting of shareholders shall be
held on the third Thursday of April in each year, or as soon thereafter as
practicable as determined by the Board. The annual meeting shall be held at a
place and time determined by the Board."
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EXHIBIT 5.1
[KAYE, SCHOLER, FIERMAN, HAYS & HANDLER LETTERHEAD]
January 6, 1994
Russ Berrie and Company, Inc.
111 Bauer Drive
Oakland, New Jersey 07436
Ladies and Gentlemen:
We have acted as counsel to Russ Berrie and Company, Inc., a New Jersey
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 (the "Registration Statement"), filed pursuant to the Securities Act of
1933, as amended (the "Act"), relating to the proposed offering by the Company
of up to an aggregate of 3,800,000 shares of the Company's common stock, stated
value $.10 per share (the "Common Stock"), pursuant to its 1994 Stock Option
Plan for Outside Directors, 1994 Stock Option and Restricted Stock Plan, 1994
Stock Option Plan and 1994 Employee Stock Purchase Plan (collectively, the
"Plans").
In that connection, we have reviewed the Company's Restated Certificate of
Incorporation and any amendments thereto, its Revised By-Laws and any amendments
thereto, resolutions of its Board of Directors and other such documents and
records as we have deemed appropriate.
On the basis of such review and having regard to legal considerations which
we deem to be relevant, it is our opinion that the Common Stock to be issued by
the Company pursuant to the Plans, upon issuance in accordance with the terms of
the Plans, will be duly and validly authorized and issued, fully paid and non-
assessable.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving this opinion, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange Commission.
Very truly yours,
KAYE, SCHOLER, FIERMAN, HAYS & HANDLER
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated February 11, 1993, except for Note 16, as to which
the date is March 3, 1993, on our audit of the consolidated financial statements
and financial statement schedules of Russ Berrie and Company, Inc. and
subsidiaries as of December 31, 1992 and 1991 and for each of the three years in
the period ended December 31, 1992, which report is incorporated by reference in
the Annual Report on Form 10-K of Russ Berrie and Company, Inc. and subsidiaries
for the year ended December 31, 1992.
COOPERS & LYBRAND
Parsippany, New Jersey
January 5, 1994
