-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QhsTFRw7yP2ypDH5vmEikawarMrVm/yzR6XmNDERtL0atzDohMWz2m34QkLNZkRj +pMYUB5O4+dnlgbE97GzDg== 0000899140-05-000957.txt : 20051026 0000899140-05-000957.hdr.sgml : 20051026 20051026113922 ACCESSION NUMBER: 0000899140-05-000957 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20051026 DATE AS OF CHANGE: 20051026 GROUP MEMBERS: D. E. SHAW & CO., L.L.C. GROUP MEMBERS: D. E. SHAW & CO., L.P. GROUP MEMBERS: DAVID E. SHAW SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BOYDS COLLECTION LTD CENTRAL INDEX KEY: 0001074530 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MISCELLANEOUS NONDURABLE GOODS [5190] IRS NUMBER: 521418730 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-56331 FILM NUMBER: 051156184 BUSINESS ADDRESS: STREET 1: 350 S ST CITY: MCSHERRYSTOWN STATE: PA ZIP: 17344 BUSINESS PHONE: 7176339898 MAIL ADDRESS: STREET 1: 350 S ST CITY: MCSHERRYSTOWN STATE: PA ZIP: 17344 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DE SHAW LAMINAR PORTFOLIOS LLC CENTRAL INDEX KEY: 0001263972 IRS NUMBER: 010577802 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: 120 W 45TH STREET STREET 2: TOWER 45, 39TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10036 SC 13D 1 b3029156a.txt INITIAL FILING UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934* THE BOYDS COLLECTION, LTD. -------------------------- (Name of Issuer) Common Stock, $0.0001 Par Value ------------------------------- (Title of Class of Securities) 103354106 --------- (CUSIP Number) D. E. Shaw Laminar Portfolios, L.L.C. Attn: Compliance Department 120 West Forty-Fifth Street Floor 39, Tower 45 New York, NY 10036 212-478-0000 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: Cornelius T. Finnegan III, Esq. Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019-6099 (212) 728-8000 October 16, 2005 ---------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. 103354106 - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION D. E. Shaw Laminar Portfolios, L.L.C. FEIN 01-0577802 - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) WC - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF --------- ------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH 11,795,725 REPORTING --------- ------------------------------------------------ PERSON WITH 9 SOLE DISPOSITIVE POWER 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 11,795,725 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11,795,725 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 19.99% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) OO - ----------- -------------------------------------------------------------------- -2- SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. 103354106 - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION D. E. Shaw & Co., L.P. FEIN 13-3695715 - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) AF - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF --------- ------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH 11,795,725 REPORTING --------- ------------------------------------------------ PERSON WITH 9 SOLE DISPOSITIVE POWER 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 11,795,725 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11,795,725 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 19.99% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IA, PN - ----------- -------------------------------------------------------------------- -3- SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. 103354106 - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION D. E. Shaw & Co., L.L.C. FEIN 13-3799946 - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) AF - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF --------- ------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH 11,795,725 REPORTING --------- ------------------------------------------------ PERSON WITH 9 SOLE DISPOSITIVE POWER 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 11,795,725 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11,795,725 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 19.99% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) OO - ----------- -------------------------------------------------------------------- -4- SCHEDULE 13D - -------------------------------------------------------------------------------- CUSIP No. 103354106 - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION David E. Shaw - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [ ] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) AF - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF --------- ------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH 11,795,725 REPORTING --------- ------------------------------------------------ PERSON WITH 9 SOLE DISPOSITIVE POWER 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 11,795,725 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11,795,725 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 19.99% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - ----------- -------------------------------------------------------------------- -5- Item 1. Security and Issuer. This statement on Schedule 13D relates to the common stock, par value $0.0001 per share ("Common Stock"), of The Boyds Collection, Ltd., a Maryland corporation (the "Issuer"), and is being filed pursuant to Rule 13d-1 under the Securities Exchange Act of 1933, as amended (the "Exchange Act"). The principal executive offices of the Issuer are located at 350 South Street, McSherrystown, Pennsylvania 17344. Item 2. Identity and Background. (a), (f) This statement is filed on behalf of D. E. Shaw Laminar Portfolios, L.L.C., a Delaware limited liability company ("Laminar"), D. E. Shaw & Co., L.P., a Delaware limited partnership ("DESCO LP"), D. E. Shaw & Co., L.L.C., a Delaware limited liability company ("DESCO LLC"), and David E. Shaw, a citizen of the United States of America (David E. Shaw, together with Laminar, DESCO LP and DESCO LLC, collectively, the "Reporting Persons"). The Reporting Persons are filing jointly and the agreement among the Reporting Persons to file jointly is attached hereto as Exhibit 2 and incorporated herein by reference. (b) The business address and principal office, as applicable, of all Reporting Persons is 120 West Forty-Fifth Street, Floor 39, Tower 45, New York, NY 10036. (c) The principal business of Laminar is that of a limited liability company focusing primarily on investment opportunities. Laminar has no executive officers or directors. The principal business of DESCO LP is to act as an investment adviser to certain funds, including without limitation Laminar. The principal business of DESCO LLC is to act as managing member to certain funds, including without limitation Laminar. D. E. Shaw & Co., Inc. ("DESCO Inc."), a Delaware corporation, is the general partner of DESCO LP. D. E. Shaw & Co. II, Inc. ("DESCO II, Inc."), a Delaware -6- corporation, is the managing member of DESCO LLC. David E. Shaw is the president and sole shareholder of DESCO Inc. and DESCO II, Inc. (d), (e) During the last five years, neither any Reporting Person nor, to the best knowledge of any Reporting Person, any person named in Item 2, has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violations with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. In acquiring 11,795,725 shares of Common Stock on October 16, 2005, Laminar paid $100 of its working capital. Item 4. Purpose of Transaction. Laminar purchased the Common Stock for the purposes of investing in the Issuer and assisting in protecting Laminar's position in the bankruptcy of the Issuer. Laminar's position could involve acquiring a controlling interest in the Purchaser through the bankruptcy process or otherwise. Pursuant to a Securities Purchase Agreement (the "Purchase Agreement"), dated October 16, 2005, by and among KKR 1996 Fund L.P. ("KKR"), Laminar and, for the limited purposes set forth in the Purchase Agreement, the Issuer, KKR sold, transferred, assigned and conveyed to Laminar, and Laminar purchased from KKR, 11,795,725 -7- shares of Common Stock. The aggregate purchase price for the Common Stock purchased by Laminar under the Purchase Agreement was $100. The Purchase Agreement also includes a mutual release of liability between Laminar and KKR. The foregoing summary of the Purchase Agreement is qualified in its entirety by reference to the Purchase Agreement, a copy of which is attached hereto as Exhibit 3 and incorporated herein by reference. Prior to the bankruptcy, Laminar purchased certain secured debt of the Issuer in the aggregate face amount of $60,000,000. Such secured debt is not convertible into Common Stock. On October 16, 2005, the Issuer and certain of its subsidiaries filed voluntary petitions for reorganization under chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Maryland (the "Bankruptcy Court"). Laminar has held talks and discussions with the Issuer regarding (i) the extension of debtor-in-possession financing to the Issuer and (ii) the potential sponsoring of a plan of reorganization for the Issuer and (iii) other matters relating to its status as a secured creditor of the Issuer. An affiliate of Laminar is in the process of extending to the Issuer an $8,000,000 debtor-in-possession credit facility (the "DIP Credit Facility"), which remains subject to final approval by the Bankruptcy Court. Laminar has also spoken with other creditors of the Issuer regarding the Issuer's bankruptcy. Laminar may at any time and from time to time (as permitted by applicable law and bankruptcy order) determine to acquire through open market purchases or otherwise additional shares of the Issuer's Common Stock; sell through the open market or otherwise; or otherwise engage or participate in a transaction or series of transactions with the purpose or effect of influencing control of the Issuer. Such transactions may take place at any time without prior notice. There can be no assurance, however, that Laminar or any other Reporting Persons will take any such action. As part of Laminar's ongoing review, Laminar will (after the date hereof) from time to time hold talks or discussions with and respond to any inquiries from various parties, including, without limitation, the Issuer's Board of Directors, management, or representatives; other shareholders, creditors, and stakeholders in the Issuer's bankruptcy; and other persons or entities regarding the Issuer's affairs and strategic alternatives. Based on the above-referenced talks, discussions or inquiries, and subject to applicable law and depending upon certain factors, including, without limitation, the financial performance of the Issuer, Laminar may determine to pursue various strategic alternatives in respect of its investment in the Issuer, including the acquisition of a controlling interest in the Issuer pursuant to a plan of reorganization approved by the Bankruptcy Court. Such actions may include, without limitation, direct or indirect participation in the following: o restructuring and effecting other significant transactions with respect to the Issuer; o forming and conducting potential strategic developments and plans related to the Issuer; o seeking direct or indirect representation on the Board of Directors of the Issuer; o making recommendations to the Board of Directors and management of the Issuer concerning various business strategies, mergers, acquisitions, -8- dispositions, dividend policy, capital structure, Articles of Incorporation or Bylaws or other matters; o financing or participating in a "going private" transaction; o acquiring additional controlling interest in the Issuer; o seeking to control or influence through a merge, proxy solicitation, tender offer, exchange offer, or otherwise; o taking any other actions that could have the purpose or effect of directly or indirectly influencing control of the Issuer; o providing financing for any of the foregoing, including without limitation pursuant to the DIP Credit Facility; o or any other transactions involving the Issuer. Such transactions may take place at any time without prior notice. There can be no assurance, however that any of such possible courses of action will be pursued or, if pursued, consummated by Laminar or any other Reporting Person. Except as contemplated in this Item 4, no Reporting Person nor, to the best knowledge of any Reporting Person, any of the persons listed in Item 2, has any plans or proposals of the types referred to in clauses (a) through (j) of Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer. (a) As of October 16, 2005, there were 59,008,133 shares of Common Stock outstanding. Laminar purchased 11,795,725 shares of Common Stock. In accordance with Rule 13d-3(d)(l), Laminar may be deemed to beneficially own 11,795,725 shares of Common Stock representing 19.99% of the shares of Common Stock outstanding and deemed to be outstanding. (b) Laminar will have the power to vote or to direct the vote (and the power to dispose or direct the disposition of ) the Common Stock. -9- DESCO LP, as Laminar's investment adviser, and DESCO LLC, as Laminar's managing member, also may be deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the Common Stock. As general partner of DESCO LP, DESCO Inc. may be deemed to have the shared power to vote or to direct the vote of (and the shared the power to dispose or direct the disposition of) the Common Stock. As managing member of DESCO LLC, DESCO II, Inc. may be deemed to have the shared power to vote or to direct the vote of (and the shared power to dispose or direct the disposition of) the Common Stock. None of DESCO LP, DESCO LLC, DESCO Inc., or DESCO II, Inc. owns any shares of the Issuer directly and each such entity disclaims beneficial ownership of the Common Stock. David E. Shaw does not own any shares of the Issuer directly. By virtue of David E. Shaw's position as president and sole shareholder of DESCO Inc., which is the general partner of DESCO LP, and by virtue of David E. Shaw's position as president and sole shareholder of DESCO II, Inc., which is the managing member of DESCO LLC, David E. Shaw may be deemed to have the shared power to vote or direct the vote of, and the shared power to dispose or direct the disposition of, the Subject Shares owned by Laminar constituting approximately 19.99% of the outstanding shares of Common Stock and, therefore, David E. Shaw may be deemed to be the beneficial owner of such shares. David E. Shaw disclaims beneficial ownership of the Common Stock. As of the date hereof, neither any Reporting Person, nor to the best knowledge of any Reporting Person, any of the persons set forth in Item 2, owns any shares of Common Stock other than the shares owned by Laminar. (c) Except as set forth above, within the last 60 days, no other transactions in shares of Common Stock were effected by any Reporting Person, or to the best knowledge of any Reporting Person, any of the persons set forth in Item 2. (d) No person other than the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Common Stock owned by Laminar. Clause (e) of Item 5 of Schedule 13D is not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to the Securities of the Issuer. Except for the matters described herein, neither the Reporting Persons nor, to the best knowledge of any Reporting Person, any of the persons listed in Item 2 has any contract, arrangement, understanding or relationship with any person with respect to any securities of the Issuer. Item 7. Material to be Filed as Exhibits 1. Powers of Attorney, granted by David E. Shaw in favor of Julius Gaudio, dated February 24, 2004. 2. Joint Filing Agreement, by and among the Reporting Persons, dated February 14, 2005. 3. Securities Purchase Agreement, dated October 16, 2005, by and among KKR 1996 Fund L.P., D.E. Shaw Laminar Portfolios, L.L.C. and The Boyds Collection, Ltd. -10- SIGNATURE --------- After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete, and correct. Powers of Attorney, dated February 24, 2004 granted by David E. Shaw in favor of Julius Gaudio, are attached hereto. Dated: October 26, 2005 D. E. Shaw Laminar Portfolios, L.L.C. By: D. E. Shaw & Co., L.L.C., as managing member By: /s/ Julius Gaudio ------------------------------- Julius Gaudio Managing Director D. E. Shaw & Co., L.P. By: /s/ Julius Gaudio ------------------------------- Julius Gaudio Managing Director D. E. Shaw & Co., L.L.C. By: /s/ Julius Gaudio ------------------------------- Julius Gaudio Managing Director David E. Shaw By: /s/ Julius Gaudio ------------------------------- Julius Gaudio Attorney-in-Fact for David E. Shaw EX-1 2 b3029156b.txt POWER OF ATTORNEY Exhibit 1 --------- POWER OF ATTORNEY FOR CERTAIN FILINGS UNDER THE SECURITIES EXCHANGE ACT OF 1934 I, David E. Shaw, hereby make, constitute and appoint each of: Anne Dinning, Julius Gaudio, Lou Salkind, Stuart Steckler, and Eric Wepsic, acting individually, as my agent and attorney-in-fact, with full power of substitution, for the purpose of, from time to time, executing in my name and/or my capacity as President of D. E. Shaw & Co., Inc. (acting for itself or as the general partner of D. E. Shaw & Co., L. P. and general partner or managing member of other entities, any which in turn may be acting for itself or other entities) all documents, certificates, instruments, statement, other filings, and amendments to the forgoing (collectively, "documents") determined by such person to be necessary or appropriate to comply with ownership or control-person reporting requirements imposed by any United States or non-United States governmental or regulatory authority, including without limitation Forms 3, 4, 5, 13D, 13F, and 13G required to be filed with the Securities and Exchange Commission; and delivering, furnishing or filing any such documents with the appropriate governmental or regulatory authority. Any such determination shall be conclusively evidenced by such person's execution, delivery, furnishing, and/or filing of the applicable document. This power of attorney shall be valid from the date hereof and replaces the power granted on February 5, 2001, which is hereby cancelled. IN WITNESS HEREOF, I have executed this instrument as of the date set forth below. Date: February 24, 2004 DAVID E. SHAW, as President of D. E. Shaw & Co., Inc. /s/ David E. Shaw New York, New York POWER OF ATTORNEY FOR CERTAIN FILINGS UNDER THE SECURITIES EXCHANGE ACT OF 1934 I, David E. Shaw, hereby make, constitute and appoint each of: Anne Dinning, Julius Gaudio, Lou Salkind, Stuart Steckler, and Eric Wepsic, acting individually, as my agent and attorney-in-fact, with full power of substitution, for the purpose of, from time to time, executing in my name and/or my capacity as President of D. E. Shaw & Co. II, Inc. (acting for itself and as the managing member of D. E. Shaw & Co., L.L.C., which in turn may be acting for itself or as the managing member of other companies) all documents, certificates, instruments, statement, other filings and amendments to the forgoing (collectively, "documents") determined by such person to be necessary or appropriate to comply with ownership or control-person reporting requirements imposed by any United States or non-United States governmental or regulatory authority, including without limitation Forms 3, 4, 5, 13D, 13F and 13G required to be filed with the Securities and Exchange Commission; and delivering, furnishing or filing any such documents with the appropriate governmental or regulatory authority. Any such determination shall be conclusively evidenced by such person's execution and delivery, furnishing or filing of the applicable document. This power of attorney shall be valid from the date hereof and replaces the power granted on February 5, 2001, which is hereby cancelled. IN WITNESS HEREOF, I have executed this instrument as of the date set forth below. Date: February 24, 2004 DAVID E. SHAW, as President of D. E. Shaw & Co. II, Inc. /s/ David E. Shaw New York, New York EX-2 3 b3029156c.txt JOINT FILING AGREEMENT Exhibit 2 --------- JOINT FILING AGREEMENT In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, each of the undersigned Reporting Persons hereby agrees to the joint filing, along with all other such Reporting Persons, on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the Common Stock, $0.0001 par value, of The Boyds Collection, Ltd and that this Agreement be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, each of the undersigned hereby executes this Agreement as of this 26th day of October, 2005. D. E. Shaw Laminar Portfolios, L.L.C. By: D. E. Shaw & Co., L.L.C., as managing member By: /s/ Julius Gaudio ------------------------------- Julius Gaudio Managing Director D. E. Shaw & Co., L.P. By: /s/ Julius Gaudio ------------------------------- Julius Gaudio Managing Director D. E. Shaw & Co., L.L.C. By: /s/ Julius Gaudio ------------------------------- Julius Gaudio Managing Director David E. Shaw By: /s/ Julius Gaudio ------------------------------- Julius Gaudio Attorney-in-Fact for David E. Shaw EX-3 4 b3029156d.txt SECURITIES PURCHASE AGREEMENT Exhibit 3 --------- SECURITIES PURCHASE AGREEMENT SECURITIES PURCHASE AGREEMENT, dated October 16, 2005 (this "Agreement"), by and among KKR 1996 Fund L.P., a Delaware limited partnership (the "Seller"), and D. E. Shaw Laminar Portfolios, L.L.C. (the "Purchaser"), and, solely for purposes of Sections 5 and 6 of this Agreement, The Boyds Collection, Ltd, a Maryland corporation (the "Company"). WHEREAS, the Seller owns of record and beneficially 11,795,725 shares of the common stock, par value $.0001 per share (the "Common Stock"), of the Company, representing 19.99% of the issued and outstanding shares of Common Stock as of the date hereof (the "Common Shares"); and WHEREAS, the Seller desires to sell, transfer, assign and convey to the Purchaser, and the Purchaser desires to purchase from the Seller, upon the terms and subject to the conditions set forth herein, the Common Shares, together with such additional securities, property or payments which accrue, are paid or payable on, or received or receivable with respect to the Common Shares (collectively, the "Securities"); NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the parties hereto hereby agree as follows: 1. PURCHASE AND SALE OF SECURITIES Upon the terms and subject to the conditions set forth herein, on the date hereof, the Seller shall sell, transfer, assign and convey the Securities to the Purchaser, and the Purchaser shall purchase the Securities from the Seller, at a purchase price of $0.01 per share, for an aggregate cash purchase price of $100 (the "Purchase Price"). 2. CLOSING (a) The closing of the purchase and sale of the Securities (the "Closing") shall take place at the offices of Willkie Farr & Gallagher LLP, 787 Seventh Avenue, New York, New York 10019, on the date hereof. (b) At the Closing, such sale and purchase shall be effected by the Purchaser delivering to the Seller the Purchase Price. At the Closing, or as promptly as practicable thereafter (the "Settlement Date"), the Seller shall deliver duly executed certificates or other instruments evidencing the Securities purchased on the date hereof, in each case with appropriate instruments of transfer attached (duly endorsed or otherwise in form sufficient for transfer). All such certificates and other instruments shall be satisfactory to counsel to the Purchaser. The Purchase Price shall be paid in cash. 3. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE SELLER The Seller represents and warrants to, and covenants with, the Purchaser that: (a) The Seller is duly formed, validly existing and in good standing under the laws of its jurisdiction of organization. (b) The Seller has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with their terms, and the execution, delivery and performance of this Agreement by the Seller and the consummation by the Seller of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Seller. This Agreement has been duly executed and delivered by the Seller and constitutes a legally valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms. (c) The Seller has good and marketable title to the Securities, and the Securities are owned by the Seller free and clear of any security interest, lien, claim or other encumbrance or any restriction on transfer or voting (collectively, "Encumbrances"). Upon delivery of the Securities to the Purchaser at the Closing, against payment therefor as contemplated hereby, the Seller will deliver the Securities to the Purchaser free and clear of any Encumbrance. (d) No consent, approval, authorization or order or permit of any court, governmental agency or body or arbitrator having jurisdiction over the Seller is required for the execution, delivery or performance by the Seller of its obligations hereunder including, without limitation, the sale, transfer, assignment and conveyance of the Securities. (e) Neither execution and delivery of this Agreement nor the sale of the Securities nor the performance of the Seller's other obligations hereunder will violate, conflict with, result in a breach of, or constitute a default (or an event that, with the giving of notice or the lapse of time, or both, would constitute a default) under (i) the organizational documents of the Seller, or (ii) any decree, judgment, order, law, rule, regulation or determination of any court, governmental agency or body or arbitrator having jurisdiction over the Seller or any of its assets or properties. (f) The Seller is aware that the Purchaser may possess material non-public information regarding the Company or the Securities. In addition, the Purchaser has received historical financial information regarding the Company through the date hereof. The Purchaser has received financial and other projections in connection with the Company, provided to the Purchaser by the Company or their financial advisors, during the months of September and October 2005, including without limitation those contained in the (i) email sent on September 26, 2005, 11:41 AM by Saul Burian of Houlihan Lokey Howard & Zurkin ("HLHZ") to Daniel Posner containing earnings projections, (ii) email sent on October 5, 2005, 11:06 AM by Joseph Macharsky of the Company to Lauren Robertsen containing a weekly sales report, (iii) email sent on October 5, 2005, 8:09 PM by Timothy Kiick of the Company to Lauren Robertsen containing a weekly cash flow update, (iv) email sent on October 9, 2005, 5:56 PM by Brad Jordan of HLHZ to Lauren Robertsen containing a cash flow forecast, (v) email sent on October 12, 2005, 3:50 PM by Timothy Kiick to Lauren Robertsen containing a weekly cash flow update and (vi) email sent on October 12, 2005, 3:36 PM by Brad Jordan of HLHZ to Lauren Robertsen containing a cash flow forecast, all of which projections, emails and information the Purchaser has reviewed and fully understands (the "Additional Information"). The Seller has received the Additional Information via email. The Seller hereby waives any and all claims it may have or -2- may hereafter acquire against the Purchaser relating to any failure by the Purchaser to disclose any material non-public information to the Seller in connection with the Seller's sale of the Securities. The Seller hereby represents and warrants that it is financially sophisticated; it beneficially owns over 50% of the equity in the Company prior to this transaction and is represented on the board of directors of the Company; it is capable of obtaining all information that it deems material to this transaction from its records, its agents, and/or the Company; it has been afforded the opportunity to ask such questions of the Company as it deems material to this transaction and such questions have been addressed to its satisfaction; and it acknowledges that no representations have been made by the Purchaser in respect of this transaction or the Company except as expressly set forth in this Agreement. (g) There is no investment banker, broker, finder or other intermediary who might be entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Seller. 4. REPRESENTATIONS AND WARRANTIES AND COVENANTS OF THE PURCHASER The Purchaser represents and warrants to, and covenants with, the Seller that: (a) The Purchaser is duly formed, validly existing and in good standing under the laws of its jurisdiction of organization. (b) The Purchaser has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with their terms, and the execution, delivery and performance of this Agreement by the Purchaser and the consummation by the Purchaser of the transactions contemplated hereby have been duly authorized by all necessary action on behalf of the Purchaser. This Agreement has been duly executed and delivered by the Purchaser and constitutes a legally valid and binding agreement of the Purchaser, enforceable against the Purchaser in accordance with its terms. (c) No consent, approval, authorization or order or permit of any court, governmental agency or body or arbitrator having jurisdiction over the Purchaser is required for the execution, delivery or performance by the Purchaser of its obligations hereunder, including without limitation the purchase of the Securities. (d) Neither execution and delivery of this Agreement nor the acquisition of the Securities or the performance of the Purchaser's other obligations hereunder will violate, conflict with, result in a breach of, or constitute a default (or an event that, with the giving of notice or the lapse of time, or both, would constitute a default) under (i) the organizational documents of the Purchaser, or (ii) any decree, judgment, order, law, rule, regulation or determination of any court, governmental agency or body or arbitrator having jurisdiction over the Purchaser or any of its assets or properties. (e) The Purchaser is aware that the Seller may possess material non-public information regarding the Company or the Securities. The Purchaser hereby waive any and all claims it may have or may hereafter acquire against the Seller relating to any failure by the Seller to disclose any material non-public information to the Purchaser in connection with the Seller' -3- sale of the Securities. The Purchaser acknowledges that no representations have been made by the Seller in respect of this transaction or the Company except as expressly set forth in this Agreement. (f) There is no investment banker, broker, finder or other intermediary who might be entitled to any fee or commission upon consummation of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Purchaser. 5. ADDITIONAL COVENANTS OF THE PARTIES (a) From and after the date hereof, each party hereto (including the Company) shall execute all certificates, instruments, documents or agreements and shall take any other action which it is reasonably requested to execute or take by any other party hereto to further effectuate the respective rights and obligations of the parties hereto under, and as contemplated by, this Agreement. (b) As an integral part of this transaction and the consideration herein, each of the Purchaser and the Seller (for itself and its affiliates (other than the Company)) hereby mutually releases any claims, counterclaims, offsets, causes of action, damages and liabilities, whether known or unknown, that it may have as of the date hereof against the other or the other's directors, officers, managers, attorneys, advisors and affiliates (other than the Company) with respect to the Company and its holdings of (1) debt claims against the Company and/or any of its subsidiaries and/or (2) equity securities in the Company; provided that this release shall not apply to any obligations under this Agreement, to the extent such obligations survive. 6. COMPANY MATTERS (a) The Company hereby represents and warrants to, and covenants with, the Purchaser and the Seller that: (i) the Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Maryland; (ii) the Company has full legal right, power and authority to execute, deliver, and perform its obligations under this Agreement in accordance with their terms, and the execution, delivery and performance of its obligations under this Agreement by the Company have been duly authorized by all necessary action on behalf of the Company; (iii) this Agreement has been duly executed and delivered by the Company and constitutes a legally valid and binding agreement of the Company, enforceable against the Company in accordance with its terms; (iv) no consent, approval, authorization or order or permit of any court, governmental agency or body or arbitrator having jurisdiction over the Company is required for the execution, delivery or performance by the Company of its obligations hereunder, except for any such consents, approvals, authorizations, orders or permits -4- which the failure to obtain would not have or is not reasonably likely to have a material adverse effect on the Company; (v) neither the execution and delivery of this Agreement by the Company nor the performance of the Company's obligations hereunder will violate, conflict with, result in a breach of, or constitute a default (or an event that, with the giving of notice or the lapse of time, or both, would constitute a default) under (A) the articles of incorporation, bylaws or other organizational documents of the Company, or (B) any decree, judgment, order, law, rule, regulation or determination of any court, governmental agency or body or arbitrator having jurisdiction over the Company or any of its assets or properties, except for such violations, conflicts, breaches or defaults that would not have or are not reasonably likely to have a material adverse effect on the Company; (vi) the board of directors of the Company has heretofore taken all necessary action for purposes of Sections 3-601 through 3-605 of the Maryland General Corporation Law (including any successor statutes , together, the "MBCA") to (A) irrevocably approve and has so approved this Agreement and the transactions contemplated hereby such that neither Purchaser nor its affiliates or associates (together, the "Purchaser Parties") shall be deemed to be an "interested party" as defined in Section 3-601(j) of the MBCA and (B) resolve that, from and after the date of such resolution, Section 3-602 of the MBCA shall not be applicable to any "business combination" within the meaning of the MBCA that may take place between the Purchaser Parties, on the one hand, and the Company, on the other, as a result of the transactions contemplated by this Agreement or otherwise; and (vii) 59,008,133 shares of Common Stock are issued and outstanding. (b) The Company acknowledges the receipt of adequate consideration for the performance of its obligations under this Agreement. 7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES The respective agreements, representations, warranties, covenants and other statements made by or on behalf each party hereto pursuant to this Agreement shall remain in full force and effect, regardless of any investigation made by or on behalf of any party, and shall survive delivery of and payment for the Securities; provided, that the representations and warranties of the Seller and the Purchaser (other than the representations and warranties set forth in Section 3(f) and Section 4(e), respectively) shall not survive after the Settlement Date. 8. GENERAL PROVISIONS (a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State. (b) Jurisdiction; Service of Process; No Jury Trial. With respect to any claim arising out of this Agreement, the Seller and the Purchaser each irrevocably submit to the exclusive jurisdiction of the courts of the State of New York and the United States District Court located in -5- the Borough of Manhattan in New York City and agree that any disputes that may arise out of this Agreement shall be litigated in such courts. The Seller and the Purchaser each irrevocably waive any objection which they may have at any time to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any such court, irrevocably waive any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum and further irrevocably waive the right to object, with respect to any such suit, action or proceeding brought in any such court, that such court does not have jurisdiction over such party. The Seller and the Purchaser agree that service of process upon them in any such suit, action or proceeding shall be deemed in every respect effective service of process upon them if given in the manner set forth in Section 8(d). The Seller and the Purchaser waive the right to a trial by jury in connection with any dispute arising out of this Agreement. (c) Interpretation. The headings of the sections and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a part thereof. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement. (d) Notices. All communications under this Agreement shall be in writing and shall be delivered by hand or facsimile or mailed by overnight courier or by registered or certified mail, postage prepaid, as follows: (i) if to the Purchaser: D.E. Shaw Laminar Portfolios, L.L.C. 39th Floor, Tower 45 120 West 45th St. New York, NY 10036 Attention: Fax No.: 212-478-0100 with a copy to: Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019 Attention: Steven Wilamowsky, Esq. Fax No.: 212-728-8111 -6- (ii) if to the Seller: KKR 1996 Fund L.P. c/o Kohlberg Kravis Roberts & Co. L.P. 9 West 57th Street New York, New York 10019 Attention: Simon Brown Fax No.: 212-750-0003 with a copy to: Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, NY 10017 Attention: Mark Thompson Fax No.: 212-455-2502 (iii) if to the Company: The Boyds Collection, Ltd 350 South Street McSherrystown, PA 17344 Attention: Jan Murley Fax No.: 717-633-5516 with a copy to: Kirkland & Ellis LLP 153 East 53rd Street New York, NY 10022 Attention: Lisa Laukitis Fax No.: 212-446-4900 Any party hereto may from time to time change its address or fax number for notices under this Section 8(d) by giving notice of such changed address to the other parties hereto. Any notice addressed in accordance with this Section 8(d) shall be deemed to be given: if delivered by hand or facsimile, on the date of such delivery; if mailed by courier, on the first business day following the date of such mailing; and if mailed by registered or certified mail, on the third business day after the date of such mailing. (e) Expenses and Taxes. All fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such fees, costs or expenses. (f) Publicity. The parties agree to consult with each other to coordinate the issuance of any press release or similar public announcement or communication relating to the execution or performance of this Agreement or to the transactions contemplated hereby. -7- (g) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties. (h) Entire Agreement; Amendment. This Agreement constitutes the entire understanding of the parties hereto and supersedes all prior understandings among such parties. This Agreement may be amended with (and only with) the written consent of the Seller and the Purchaser. (i) Severability. If any term or provision of this Agreement or the application of any such term or provision to any person or circumstance shall be held invalid, illegal, void or unenforceable in any respect by a court of competent jurisdiction, the remaining terms and provisions of this Agreement shall remain in full force and effect, unless such invalidity, illegality, voidness or unenforceability would substantially impair the benefits of such remaining provisions of any party hereto. (j) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement. [remainder of page intentionally left blank] -8- IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed as of the date first written above. PURCHASER --------- D. E. SHAW LAMINAR PORTFOLIOS, L.L.C. By: /s/ Daniel Posner ------------------------------------ Name: Daniel Posner Title: Authorized Signatory KKR 1996 FUND L.P. By: KKR Associates 1996, L.P., its general partner By: KKR 1996 GP L.L.C., its general partner. By: /s/ Scott Stuart ------------------------------------ Name: Scott Stuart Title: Member IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed as of the date first written above. COMPANY ------- THE BOYDS COLLECTION, LTD By: /s/ Jan L. Murley ------------------------------------ Name: Jan L. Murley Title: CEO -----END PRIVACY-ENHANCED MESSAGE-----