<PAGE> 1
As filed with the Securities and Exchange Commission on January 4, 1999
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
RUSS BERRIE AND COMPANY, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
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 (Zip code)
offices)
</TABLE>
Russ Berrie and Company, Inc. 1999 Stock Option Plan for Outside Directors
Russ Berrie and Company, Inc. 1999 Stock Option and Restricted Stock Plan
Russ Berrie and Company, Inc. 1999 Stock Option Plan
Russ Berrie and Company, Inc. 1999 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, LLP
425 Park Avenue
New York, New York 10022
(212) 836-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------- ------------------ ------------------- ---------------------- --------------------
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED MAXIMUM AGGREGATE OFFERING REGISTRATION FEE
OFFERING PRICE PRICE
PER SHARE
- --------------------------------- ------------------ ------------------- ---------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock, stated value 2,650,000 $21.00 (1) $55,650,000 (1) $15,470.70 (1)
$.10 per share
================================= ================== =================== ====================== ====================
</TABLE>
(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 December 28, 1998.
<PAGE> 2
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, 1997.
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998.
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998.
4. The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998.
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, as amended
(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
-2-
<PAGE> 3
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
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:
EXHIBITS DESCRIPTION
4.1 Russ Berrie and Company, Inc. 1999 Stock Option Plan for Outside
Directors. Incorporated by reference herein from Exhibit A to the
Company's Proxy Statement on Form 14A dated March 13, 1998 (the
"Proxy Statement").
4.2 Russ Berrie and Company, Inc. 1999 Stock Option and Restricted
Stock Plan. Incorporated by reference herein from Exhibit B to the
Proxy Statement.
4.3 Russ Berrie and Company, Inc. 1999 Stock Option Plan. Incorporated
by reference herein from Exhibit C to the Proxy Statement.
4.4 Russ Berrie and Company, Inc. 1999 Employee Stock Purchase Plan.
Incorporated by reference herein from Exhibit D to the Proxy
Statement.
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. Incorporated by
reference herein from Exhibit 4.5(b) to Registration Statement No.
33-51823 on Form S-8, as filed on January 6, 1994 ("S-8
Registration Statement").
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. Incorporated by reference herein from Exhibit 4.6(b) to S-8
Registration Statement.
(c) Amendment to Revised By-Laws of the Company adopted February 18,
1988. Incorporated by reference herein from Exhibit 4.6(c) to S-8
Registration Statement.
(d) Amendment to Revised By-Laws of the Company adopted July 25, 1995.
5.1 Opinion of Messrs. Kaye, Scholer, Fierman, Hays & Handler, LLP.
23.1(a) Consent of Independent Accountants - Arthur Andersen LLP.
(b) Consent of Independent Accountants - PricewaterhouseCoopers LLP.
23.2 Consent of Messrs. Kaye, Scholer, Fierman, Hays & Handler, LLP.
Contained in such firm's opinion filed as Exhibit 5.1 hereto.
24 Power of Attorney of Directors included on the signature page at
6.
-3-
<PAGE> 4
ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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 to be
the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in 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 Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
-4-
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Oakland, State of New Jersey, on December 29, 1998.
RUSS BERRIE AND COMPANY, INC.
By: /s/ Russell Berrie
Name: Russell Berrie
Title: Chairman of the Board and
Chief Executive Officer
-5-
<PAGE> 6
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, Paul Cargotch and Eric R. Lohwasser 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Russell Berrie Chairman of the Board, Chief 12/29/98
Russell Berrie Executive Officer and Director
/s/ Arnold S. Bloom Vice President, General Counsel and 12/30/98
Arnold S. Bloom Secretary
/s/ Paul Cargotch Executive Vice President, Assistant 12/29/98
Paul Cargotch Secretary and Director
/s/ Eric R. Lohwasser Vice President - Finance and 12/23/98
Eric R. Lohwasser Chief Financial Officer
Director
Angelica Berrie
/s/ Raphael Benaroya Director 12/28/98
Raphael Benaroya
Director
A. Curts Cooke
Director
Ilan Kaufthal
/s/ Charles Klatskin Director 12/29/98
Charles Klatskin
/s/ Joseph Kling Director 12/28/98
Joseph Kling
/s/ William A. Landman Director 12/29/98
William A. Landman
Director
Sidney Slauson
</TABLE>
-6-
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE
- ------- ----------- ----
<S> <C> <C>
4.6(d) Amendment to Revised By-Laws of the Company adopted July 25, 1995.............
5.1 Opinion of Messrs. Kaye, Scholer, Fierman, Hays & Handler, LLP................
23.1(a) Consent of Independent Accountants - Arthur Andersen LLP......................
(b) Consent of Independent Accountants - PricewaterhouseCoopers LLP...............
</TABLE>
-7-
<PAGE> 1
EXHIBIT 4.6(d)
RUSS BERRIE AND COMPANY, INC.
95-14
WHEREAS, at a meeting of the Board held on July 25, 1995, the Board of
Directors elected Jimmy Hsu, formerly Executive Vice President of the
Corporation, to the office of Vice Chairman of the Board of Directors; and
WHEREAS, the Board of Directors must amend the By-Laws of the Corporation
to provide for the position of Vice Chairman of the Board as an officer of the
Corporation.
NOW, THEREFORE, the following resolutions are hereby adopted effective as
of July 25, 1995:
RESOLVED, that, Section 4.1 of the By-Laws be, and hereby is, amended as
follows:
"4.1 Number; Security. The executive officers of the corporation shall
be the Chairman of the Board, Vice Chairman of the Board, the
president, one or more vice presidents (including an executive vice
president, if the Board so determines), a secretary and a treasurer.
Any two or more offices may be held by the same person. The Board may
require an officer, agent or employee to give security for the
faithful performance of his duties."
RESOLVED, that, a new Section 4.6(A) be, and it hereby is, added to the
By-Laws, in correct numerical sequence, and that the By-Laws are hereby amended
to include such additional Section 4.6(A):
"4.6(A) Vice Chairman of the Board. The Vice Chairman of the Board
shall have such powers and duties as the Board or the Chairman of the
Board assigns to him."
<PAGE> 1
EXHIBIT 5.1
[KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP. LETTERHEAD]
December 28, 1998
Russ Berrie and Company, Inc.
111 Bauer Drive
Oakland, NJ 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 2,650,000 shares of the
Company's common stock, stated value $.10 per share (the "Common Stock"),
pursuant to its 1999 Stock Option Plan for Outside Directors, 1999 Stock
Option and Restricted Stock Plan, 1999 Stock Option Plan and 1999 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.
<PAGE> 2
KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP
2
December 28, 1998
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, LLP
<PAGE> 1
EXHIBIT 23.1(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Russ Berrie and Company, Inc.:
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated January
30, 1998 included in the Russ Berrie and Company, Inc. Form 10-K for the year
ended December 31, 1997 and to all references to our firm included in this
registration statement.
ARTHUR ANDERSEN LLP
Roseland, New Jersey
December 29, 1998
<PAGE> 1
EXHIBIT 23.1(b)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-8 of our
report, dated January 31, 1997, except for the information presented in Note
16, for which the date is February 7, 1997, on our audits of the consolidated
financial statements and financial statement schedule of Russ Berrie & Co.,
Inc. and subsidiaries.
PricewaterhouseCoopers LLP
New York, New York
December 28, 1998
