AMENDMENT NO. 5 TO SCHEDULE 13D

STATE OF NEW JERSEY

COUNTY OF BERGEN

-----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, EPBX0hE71xu7NbUO15XraWVuljlciDp4Aynoc76QNPeXwM1XSDxBvf94ZgL0UH+l KxeDG7oufKnGsKVHaufXeQ== 0000950123-06-010689.txt : 20060818 0000950123-06-010689.hdr.sgml : 20060818 20060818155800 ACCESSION NUMBER: 0000950123-06-010689 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20060818 DATE AS OF CHANGE: 20060818 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: RUSS BERRIE & CO INC CENTRAL INDEX KEY: 0000739878 STANDARD INDUSTRIAL CLASSIFICATION: DOLLS & STUFFED TOYS [3942] IRS NUMBER: 221815337 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-35778 FILM NUMBER: 061043682 BUSINESS ADDRESS: STREET 1: 111 BAUER DR CITY: OAKLAND STATE: NJ ZIP: 07436 BUSINESS PHONE: 2013379000 MAIL ADDRESS: STREET 2: 111 BAUER DRIVE CITY: OAKLAND STATE: NJ ZIP: 07436 FORMER COMPANY: FORMER CONFORMED NAME: BERRIE RUSS & CO INC DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: RUSSELL BERRIE FOUNDATION CENTRAL INDEX KEY: 0001213038 IRS NUMBER: 222620908 STATE OF INCORPORATION: NJ FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 111 BAUER DR CITY: OAKLAND STATE: CA ZIP: 07436 SC 13D/A 1 e19727sc13dza.htm AMENDMENT NO. 5 TO SCHEDULE 13D AMENDMENT NO. 5 TO SCHEDULE 13D


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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 5 )*

Russ Berrie and Company, Inc.

(Name of Issuer)

Common Stock, $0.10 stated value

(Title of Class of Securities)

782233 10 0

(CUSIP Number)

Robert L. Messineo, Esq.
Weil, Gotshal & Manges LLP
767 Fifth Avenue, New York, New York 10153
(212) 210-8000

(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)

August 4, 2006

(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 §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §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).

Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.


CUSIP No.		782233 10 0		Page		2		of		11 Pages

NAMES OF REPORTING PERSONS:

The Russell Berrie Foundation, a New Jersey Nonprofit Corporation

I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):

TIN 22-2620908

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):

(a) o

(b) o

SEC USE ONLY:

SOURCE OF FUNDS (SEE INSTRUCTIONS):

N/A

CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):

CITIZENSHIP OR PLACE OF ORGANIZATION:

State of New Jersey

SOLE VOTING POWER:

NUMBER OF

SHARED VOTING POWER:

BENEFICIALLY

OWNED BY

EACH

SOLE DISPOSITIVE POWER:

REPORTING

PERSON

WITH

SHARED DISPOSITIVE POWER:

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:

CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):

0.00%

TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):

Page 3 of 11 Pages

AMENDMENT NO. 5 TO SCHEDULE 13D

The Statement on Schedule 13D relating to the common stock, $0.10 stated value per share (“Common Shares”) of Russ Berrie and Company, Inc., a New Jersey corporation (the “Company”), filed by The Russell Berrie Foundation, a New Jersey Nonprofit Corporation (the “Foundation”) on January 6, 2003 (the “Original 13D”), as amended by Amendment No. 1 to Schedule 13D, filed on July 15, 2003, Amendment No. 2 to Schedule 13D, filed on May 4, 2004, Amendment No. 3 to Schedule 13D, filed on October 27, 2004, and Amendment No. 4 to Schedule 13D, filed on March 1, 2005 (the Original 13D as so amended, the “Schedule 13D As Previously Amended”), is hereby further amended as follows.

ITEM 2. IDENTITY AND BACKGROUND

Paragraphs (a) through (f) of Item 2 of the Schedule 13D As Previously Amended are hereby deleted in their entirety and replaced with the following:


“(a)		The members of the board of trustees of the Foundation are Angelica Urra Berrie, Scott Berrie, Ilan Kaufthal, Myron Rosner, Norman Seiden and Stephen Seiden. Stephen Seiden was elected to the board of trustees of the Foundation on June 9, 2006. Ms. Berrie and Messrs. Scott Berrie, Stephen Seiden and Myron Rosner also serve as President, Vice President, Treasurer and Secretary of the Foundation, respectively. There are no other executive officers of the Foundation.

(b) — (c)		Ms. Berrie is President of the Foundation. Her business address is c/o the Foundation, Glenpointe Centre East — 7^th Floor, 300 Frank W. Burr Boulevard, Teaneck, NJ 07666. See Item 4.

		Mr. Scott Berrie is the Chief Executive Officer of Scojo Vision, LLC, a producer and seller of non-prescription reading glasses. The firm’s (and Mr. Berrie’s) business address is 180 Varick Street, Suite 1430, New York, NY 10014.

		Mr. Kaufthal is Vice Chairman — Investment Banking of Bear, Stearns & Co., Inc., an investment banking firm. The firm’s (and Mr. Kaufthal’s) business address is 383 Madison Avenue, New York, NY 10179. See Item 4.

		Mr. Rosner is Of Counsel to the law firm of Wilentz, Goldman & Spitzer P.A. The firm’s (and Mr. Rosner’s) business address is 90 Woodbridge Center, Woodbridge, NJ 07095.

		Mr. Norman Seiden is Vice President of Herrod Construction Company, a construction company. The corporation’s (and Mr. Norman Seiden’s) business address is 200 Old Palisade Road, Suite 17D, Fort Lee, NJ 07024.

		Mr. Stephen Seiden is President of Herrod Construction Company. Mr. Stephen Seiden’s business address is 1095 Cranbury South River Road, Jamesburg, NJ 08831.

(d) — (e)		During the last five years, none of Ms. Berrie and Messrs. Scott Berrie, Kaufthal, Rosner, Norman Seiden and Stephen Seiden has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction, the result of which proceeding such individual 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.

(f)		Each of Ms. Berrie and Messrs. Kaufthal, Rosner, Norman Seiden and Stephen Seiden is a citizen of the United States of America. Mr. Scott Berrie is a citizen of both the United States of America and the State of Israel.”

Page 4 of 11 Pages

ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION

The following is hereby added to the end of Item 3 of the Schedule 13D As Previously Amended:

“On March 28, 2006, the Executors of the Estate of Mr. Russell Berrie distributed all 1,852,463 Common Shares held by the Estate to The Russell Berrie 2002A Trust (the “2002A Trust”), in accordance with the Last Will and Testament of Mr. Russell Berrie admitted to Probate by the Surrogate of Bergen County, New Jersey, on January 6, 2003. Immediately thereafter, on March 28, 2006, in accordance with the terms of the Trust Indenture governing the 2002A Trust (the “Trust Indenture”), the 2002A Trust made a disposition of all Common Shares held by it (including the Common Shares received pursuant to the preceding sentence), totaling 4,624,451 Common Shares, to the Foundation (the “Transferred Shares”). Also as of March 28, 2006, consistent with the intent of the Trust Indenture, all the Stock Trustees (as defined in the Trust Indenture) of the 2002A Trust (the “2002A Stock Trustees”), as such, and the Foundation entered into a Receipt, Release, Refunding and Share Voting and Disposition Agreement (the “Voting Agreement”) pursuant to which, among other things, the 2002A Stock Trustees, as such, collectively retained the sole power to vote and to dispose of all Transferred Shares, as well as any securities of the Company received by the Foundation in respect of the Transferred Shares, until December 25, 2007 or until such Voting Agreement is earlier terminated as provided therein (the “Retained Rights”). Notwithstanding the foregoing, the Retained Rights automatically terminate as to the relevant shares upon their disposition by the Foundation as directed by the 2002A Stock Trustees, which occurred as of August 10, 2006. The Voting Agreement is attached hereto as Exhibit 1. As a result of the Retained Rights, although the economic benefits of ownership of the Transferred Shares were transferred to the Foundation, the 2002A Stock Trustees, as such, collectively continued to retain the sole beneficial ownership of such shares for purposes of Section 13(d) of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), until the termination of the Retained Rights and the Foundation’s beneficial ownership of Common Shares for such purposes did not increase as a result of the transaction.”

ITEM 4. PURPOSES OF THE TRANSACTION

The following is hereby added prior to the last sentence of Item 4 of the Schedule 13D As Previously Amended:

“On March 15, 2006, one of the individuals named in response to Item 2 of this Schedule 13D, Ms. Angelica Berrie, filed a Statement on Schedule 13D (as it may be amended from time to time, the “AB 13D”) with respect to her beneficial ownership of Common Shares. Reference is made to Item 4 of the AB 13D with respect to the plans and proposals of Ms. Berrie regarding the Company.

On August 4, 2006, the 2002A Stock Trustees authorized the sale by the Foundation, on the terms hereinafter described, of all the Transferred Shares (as referred to in Item 3) in conjunction with the sale by the Foundation of all other Common Shares owned by it, which was simultaneously authorized by the Board of Trustees of the Foundation after considering offers that had recently been received by the Foundation for the purchase of all of its shares. On the same date, the Foundation entered into a Share Purchase Agreement, dated August 4, 2006, by and among the Foundation and certain investment entities associated with Prentice Capital Management L. P. listed on a schedule attached thereto (the “Initial Sale Agreement”) for the sale of 8,799,466 Common Shares, including the Transferred Shares and constituting all of the Common Shares owned by the Foundation (collectively, the “Foundation Shares”), at a price of $11.30 per share payable in cash. The Initial Sale Agreement is attached hereto as Exhibit 2. The sale of the Foundation Shares pursuant to the Initial Sale Agreement was subject to the Board of Directors of the Company taking certain action relating to its reconstitution and satisfaction of other customary closing conditions. At the request of the purchasers under the Initial Sale Agreement, the Foundation, with the approval of the 2002A Stock Trustees, and the other parties to the Initial Sale Agreement amended and restated such agreement as of August 9, 2006, so as to reduce the number of Common Shares to be sold pursuant thereto by one-half and to make certain other immaterial changes (as so amended, the “Revised Sale Agreement”) and the Foundation, with the approval of the 2002A Stock Trustees, simultaneously

Page 5 of 11 Pages

entered into a substantively identical Share Purchase Agreement pursuant to which D.E. Shaw Laminar Portfolios, LLC agreed to purchase one-half of the Foundation Shares on the same terms and conditions as contained in the Revised Sale Agreement (the “Companion Sale Agreement”). The Revised Sale Agreement and the Companion Sale Agreement are attached hereto as Exhibits 3 and 4. On August 10, 2006, the Foundation sold all of the Foundation Shares in accordance with the terms and conditions of the Revised Sale Agreement and the Companion Sale Agreement. Simultaneously with the consummation of such sale of the Foundation Shares, Ms. Berrie and Mr. Kaufthal resigned as members of the Company’s Board of Directors.”

ITEM 5. INTEREST IN SECURITIES OF THE ISSUER

Item 5 of the Schedule 13D As Previously Amended is hereby deleted in its entirety and replaced with the following, in order to reflect, among other things, the sale by the Foundation of all the Foundation Shares:

“(a)

Aggregate amount and percentage of class beneficially owned by:

	(i)		The Foundation — 0 Common Shares; 0.00%

	(ii)		Angelica Urra Berrie — 24,783 Common Shares (including currently exercisable options to acquire 15,000 Common Shares); 0.12%

	(iii)		Scott Berrie — 0 Common Shares; 0.00%

	(iv)		Ilan Kaufthal — 21,000 Common Shares (including currently exercisable options to acquire 15,000 Common Shares); 0.10%

	(v)		Norman Seiden — 0 Common Shares; 0.00%

	(vi)		Myron Rosner — 0 Common Shares; 0.00%

	(vii)		Stephen Seiden — 0 Common Shares; 0.00%

Percentage beneficial ownership is calculated based on 20,853,372 Common Shares outstanding as of July 31, 2006, as reported in the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2006.

(b)

(i) The Foundation has:

	(1)		sole power to vote or to direct the vote of:

			0 Common Shares;

	(2)		shared power to vote or to direct the vote of:

			0 Common Shares;

	(3)		sole power to dispose or to direct the disposition of:

			0 Common Shares; and

	(4)		shared power to dispose or to direct the disposition of:

			0 Common Shares

Page 6 of 11 Pages

(ii)

Angelica Urra Berrie has:

	(1)		sole power to vote or to direct the vote of:

			24,783 Common Shares, representing 9,783 Common Shares and currently exercisable options to acquire 15,000 Common Shares;

	(2)		shared power to vote or to direct the vote of:

			0 Common Shares;

	(3)		sole power to dispose or to direct the disposition of: 24,783 Common Shares, representing 9,783 Common Shares and currently exercisable options to acquire 15,000 Common Shares; and

	(4)		shared power to dispose or to direct the disposition of:

			0 Common Shares

(iii)

Scott Berrie has:

	(1)		sole power to vote or to direct the vote of:

			0 Common Shares;

	(2)		shared power to vote or to direct the vote of:

			0 Common Shares;

	(3)		sole power to dispose or to direct the disposition of:

			0 Common Shares; and

	(4)		shared power to dispose or to direct the disposition of:

			0 Common Shares

(iv)

Ilan Kaufthal has:

	(1)		sole power to vote or to direct the vote of:

			21,000 Common Shares, representing 6,000 Common Shares and currently exercisable options to acquire 15,000 Common Shares;

	(2)		shared power to vote or to direct the vote of:

			0 Common Shares;

Page 7 of 11 Pages

	(3)		sole power to dispose or to direct the disposition of:

			21,000 Common Shares, representing 6,000 Common Shares and currently exercisable options to acquire 15,000 Common Shares; and

	(4)		shared power to dispose or to direct the disposition of:

			0 Common Shares

(v)

Norman Seiden has:

	(1)		sole power to vote or to direct the vote of:

			0 Common Shares;

	(2)		shared power to vote or to direct the vote of:

			0 Common Shares;

	(3)		sole power to dispose or to direct the disposition of:

			0 Common Shares; and

	(4)		shared power to dispose or to direct the disposition of:

			0 Common Shares

(vi)

Myron Rosner has:

	(1)		sole power to vote or to direct the vote of:

			0 Common Shares;

	(2)		shared power to vote or to direct the vote of:

			0 Common Shares;

	(3)		sole power to dispose or to direct the disposition of:

			0 Common Shares; and

	(4)		shared power to dispose or to direct the disposition of:

			0 Common Shares

(vii)

Stephen Seiden has:

	(1)		sole power to vote or to direct the vote of:

			0 Common Shares;

	(2)		shared power to vote or to direct the vote of:

			0 Common Shares;

Page 8 of 11 Pages

	(3)		sole power to dispose or to direct the disposition of:

			0 Common Shares; and

	(4)		shared power to dispose or to direct the disposition of:

			0 Common Shares

	(c)		In the past sixty days, none of the Foundation, Ms. Berrie and Messrs. Kaufthal, Scott Berrie, Rosner, Norman Seiden or Stephen Seiden has effected any transactions in Common Shares, other than (i) the sale of all the Foundation Shares on August 10, 2006 described in Item 4 hereof, (ii) the sale by Mr. Rosner on August 14, 2006, of (A) 500 Common Shares in a brokerage transaction on the open market at a price of $11.34 per share, (B) 157 Common Shares in a brokerage transaction on the open market at a price of $11.37 per share, (C) 1,000 Common Shares in a brokerage transaction on the open market at a price of $11.30 per share and (D) 1,100 Common Shares in a brokerage transaction on the open market at a price of $11.32 per share and (iii) the sale by Mr. Rosner and Liesa Rosner on August 14, 2006, of 750 Common Shares in a brokerage transaction on the open market at a price of $11.31 per share.

	(d)		Not applicable.

	(e)		As of August 10, 2006, the Foundation ceased to be the owner of any Common Shares.”

ITEM 6 CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER

Item 6 of the Schedule 13D As Previously Amended is hereby deleted in its entirety and replaced with the following:

“Other than as described in Items 3, 4 and 5 of this Schedule 13D, none of the Foundation, Ms. Berrie and Messrs. Scott Berrie, Kaufthal, Norman Seiden, Stephen Seiden and Rosner has any contracts, arrangements, understandings or relationships (legal or otherwise) with any persons named in Item 2 of this Schedule 13D or any other person with respect to any securities of the Company.”

Page 9 of 11 Pages

ITEM 7 MATERIAL TO BE FILED AS EXHIBITS

Exhibit 1 — Receipt, Release, Refunding and Share Voting and Disposition Agreement, dated as of March 28, 2006, among the 2002A Stock Trustees and the Foundation.

Exhibit 2 — Share Purchase Agreement, dated as of August 4, 2006, by and among the Foundation and certain investment entities listed on a schedule attached thereto.

Exhibit 3 — Amended and Restated Share Purchase Agreement, dated as of August 9, 2006, by and among the Foundation and certain investment entities listed on a schedule attached thereto.

Exhibit 4 — Share Purchase Agreement, dated as of August 9, 2006, by and among the Foundation and D.E. Shaw Laminar Portfolios, LLC.

Page 10 of 11 Pages

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: August 17, 2006


		The Russell Berrie Foundation, a New Jersey Nonprofit Corporation

		By:		/s/ Myron Rosner

				Name: Myron Rosner Title: Secretary

Page 11 of 11 Pages

EXHIBIT INDEX


Exhibit No		Description
Exhibit 1		Receipt, Release, Refunding and Share Voting and Disposition Agreement, dated as of March 28, 2006, among the 2002A Stock Trustees and the Foundation.

Exhibit 2		Share Purchase Agreement, dated as of August 4, 2006, by and among the Foundation and certain investment entities listed on a schedule attached thereto.

Exhibit 3		Amended and Restated Share Purchase Agreement, dated as of August 9, 2006, by and among the Foundation and certain investment entities listed on a schedule attached thereto.

Exhibit 4		Share Purchase Agreement, dated as of August 9, 2006, by and among the Foundation and D.E. Shaw Laminar Portfolios, LLC.

EX-99.1 2 e19727exv99w1.htm EX-99.1: RECEIPT, RELEASE, REFUNDING AND SHARE VOTING DISPOSITION AGREEMENT EX-99.1

Exhibit 1

SURROGATE’S COURT, STATE OF NEW JERSEY
COUNTY OF BERGEN


	x
	:	File No.
	:
IN THE MATTER OF THE RUSSELL	:	RECEIPT, RELEASE,
BERRIE 2002A TRUST	:	REFUNDING AND SHARE
	:	VOTING AND DISPOSITION
	:	AGREEMENT

	x

WHEREAS, by an indenture dated June 10, 2002, between the late Russell Berrie, as grantor (the “Grantor”), and Russell Berrie and Myron Rosner as trustees (the “Trust”), certain property was to be held IN TRUST, to pay the net income and so much of the principal as either trustee determined, to Russell Berrie during his life, and upon his death, the trustees were to distribute all property then belonging to the Trust, together with all property added to the Trust as a result of the Grantor’s death, pursuant to Article TWO, Sections I-V and Section VIII; and

WHEREAS, the Grantor died on December 25, 2002; and

WHEREAS, pursuant to Article FOUR of the Trust, Angelica Urra Berrie, Raphael Benaroya, Josh Weston, Ilan Kaufthal and Norman Seiden were appointed to act as trustees with Myron Rosner (the trustees in office from time to time, including any successor trustees, are hereinafter collectively referred to as the “Stock Trustees”), after the death of the Grantor; and

WHEREAS, pursuant to Article TWO of the Trust, for a period of five years after the date of death of the Grantor, the Stock Trustees (acting pursuant to the following paragraph) shall retain the exclusive right to make decisions with respect to the retention, sale and voting of shares of Common Stock, $.10 stated value per share (“Common Stock”), of Russ Berrie and Company, Inc. ( the “Company”) as are distributed pursuant to the Trust, as well as any securities of the Company received in respect of such shares as described herein (the “Stock Trustees’ Powers”); and

WHEREAS, pursuant to Article TWO of the Trust, actions of the Stock Trustees with respect to all securities subject to this Agreement shall be taken upon the approval of a majority of the Stock Trustees, with Angelica Urra Berrie having two votes and each other trustee having one vote and, in addition, with Angelica Urra Berrie (if then serving as a Trustee) having the right to cast the controlling vote in the event of deadlock with respect to any decision by the Stock Trustees (a decision of the Stock Trustees taken in accordance with such voting procedures is hereinafter referred to as a decision by a “Majority of the Stock Trustees”); and

WHEREAS, pursuant to Article TWO, Section VIII, of the Trust, following the distributions pursuant to Sections I-V, the balance of the Trust is to be distributed to The Russell Berrie Foundation, a New Jersey Nonprofit Corporation (the “Foundation”); and

WHEREAS, all distributions pursuant to Article TWO, Sections I-V of the Trust have been made; and

WHEREAS, the remaining assets of the Trust include 4,624,451 shares of the Common Stock of the Company (the “Shares”); and

WHEREAS, the Foundation represents that it has not assigned, transferred or encumbered in any way voluntarily or involuntarily, its interest in the Trust;

NOW, THEREFORE, in consideration of the premises, the Foundation hereby acknowledges receipt of the Shares from the Trust.

And the Foundation acknowledges that until December 25, 2007 (or such earlier date as may be agreed to by a Majority of the Stock Trustees or an Automatic Termination, as described below), any sale, transfer or other distribution or disposition of the Shares, and any securities of the Company received in respect thereof by reason of any stock split, stock dividend, recapitalization, extraordinary corporate event with respect to the Company, or otherwise (collectively, “Additional Securities”), shall require only the approval of a Majority of the Stock Trustees, and the consent of the Foundation (or its Trustees) shall not be required; provided however, that the proceeds of any approved sale of the Shares or any Additional Securities shall be the property of the Foundation. In connection therewith, for the term of this Agreement (subject to an Automatic Termination, as discussed below) the Foundation hereby appoints the Stock Trustees as its attorneys-in-fact, to act in its name, place and stead, with respect to effecting any such sale, transfer or disposition.

And the Foundation acknowledges that until December 25, 2007 (or such earlier date as may be agreed to by a Majority of the Stock Trustees and subject to an Automatic Termination, as described below), a Majority of the Stock Trustees shall have the exclusive right in their sole discretion to vote the Shares (and any Additional Securities) or give written consent, in person or by proxy, with respect to the Shares (and any

Additional Securities) at all meetings of the shareholders of the Company, and in all proceedings in which the vote or written consent of shareholders may be required or authorized by law. In connection therewith, for the term of this Agreement (subject to its Automatic Termination as discussed below), the Foundation hereby irrevocably appoints the Stock Trustees (with full power of substitution) as its attorneys-in-fact and proxy, for and on its behalf and in its name, place and stead, with respect to any and all voting rights with respect to the Shares and any Additional Securities.

And the Stock Trustees acknowledge and agree that all other indicia of ownership with respect to the Shares and any Additional Securities, including, but not limited to, the right to receive proceeds from any transfer or disposition thereof and the right to receive any dividends or distributions with respect thereto shall inure to the benefit of the Foundation.

Notwithstanding anything herein to the contrary, the Stock Trustees’ Powers shall automatically terminate as to the relevant Shares or Additional Securities upon the consummation of any sale, transfer or other distribution or disposition thereof by the Foundation (“Automatic Termination”).

And the Foundation agrees to segregate the Shares and any Additional Securities on the books of the Foundation and to take such other actions as may be appropriate to assure that the Stock Trustees’ Powers may be exercised.

And in consideration of the premises and of the distribution of the Shares, the Foundation hereby releases and discharges Myron Rosner, Angelica Urra Berrie, Raphael Benaroya, Josh Weston, Ilan Kaufthal and Norman Seiden, individually and as Stock

Trustees, of and from any and all liabilities or claims whatsoever that the Foundation now has or may have against said persons by reason of any act done or omitted to be done by said persons prior to the date hereof relating to the Shares.

And in consideration as aforesaid, the Foundation agrees, to the extent it is later finally determined in a judicial proceeding that the property distributed hereunder exceeds what the Foundation was entitled to receive, to refund the value of such excess to the Trust in cash.

This instrument may be executed in various counterparts, each of which shall be deemed an original, with the same effect as if all parties hereto had signed the same document.

The provisions hereof shall bind and inure to the benefit of the heirs, legal representatives, successors and assigns of the undersigned, and of any successor trustees.

Dated: As of March 28, 2006



	/s/ Myron Rosner
	Myron Rosner, as a Stock Trustee of the Trust



	/s/ Angelica Urra Berrie
	Angelica Urra Berrie, as a Stock Trustee of the Trust



	/s/ Norman Seiden
	Norman Seiden, as a Stock Trustee of the Trust



	/s/ Ilan Kaufthal
	Ilan Kaufthal, as a Stock Trustee of the Trust



	/s/ Raphael Benaroya
	Raphael Benaroya, as a Stock Trustee of the Trust



	/s/ Josh Weston
	Josh Weston, as a Stock Trustee of the Trust


	THE RUSSELL BERRIE FOUNDATION, A NEW JERSEY NONPROFIT CORPORATION
	By:	/s/ Myron Rosner
		Myron Rosner, as a trustee



	By:	/s/ Angelica Urra Berrie
		Angelica Urra Berrie, as a trustee



	By:	/s/ Norman Seiden
		Norman Seiden, as a trustee



	By:	/s/ Ilan Kaufthal
		Ilan Kaufthal, as a trustee



	By:	/s/ Scott Berrie
		Scott Berrie, as a trustee

On the 10th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared MYRON ROSNER, in his capacity as a Stock Trustee of the Trust, and in his capacity as a trustee of The Russell Berrie Foundation, a New Jersey Nonprofit Corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Brett R. Harris
	Attorney at Law of the State of New Jersey

On the 10th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared ANGELICA URRA BERRIE, in her capacity as a Stock Trustee of the Trust, and in her capacity as a trustee of The Russell Berrie Foundation, a New Jersey Nonprofit Corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, and that by her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Brett R. Harris
	Attorney at Law of the State of New Jersey

On the 10th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared NORMAN SEIDEN, in his capacity as a Stock Trustee of the Trust, and in his capacity as a trustee of The Russell Berrie Foundation, a New Jersey Nonprofit Corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Brett R. Harris
	Attorney at Law of the State of New Jersey

On the 10th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared ILAN KAUFTHAL, in his capacity as a Stock Trustee of the Trust, and in his capacity as a trustee of The Russell Berrie Foundation, a New Jersey Nonprofit Corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Brett R. Harris
	Attorney at Law of the State of New Jersey

On the 10th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared SCOTT BERRIE, in his capacity as a trustee of The Russell Berrie Foundation, a New Jersey Nonprofit Corporation, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Brett R. Harris
	Attorney at Law of the State of New Jersey

On the 28th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared RAPHAEL BENAROYA, in his capacity as a Stock Trustee of the Trust, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Brett R. Harris
	Attorney at Law of the State of New Jersey

On the 17th day of March in the year 2006, before me, the undersigned, a Notary Public in and for said State, personally appeared JOSH WESTON, in his capacity as a Stock Trustee of the Trust, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument.



	/s/ Brett R. Harris
	Attorney at Law of the State of New Jersey

EX-99.2 3 e19727exv99w2.htm EX-99.2: SHARE PURCHASE AGREEMENT EX-99.2

Exhibit 2

SHARE PURCHASE AGREEMENT

SHARE PURCHASE AGREEMENT (the “Agreement”), dated as of August 4, 2006 by and among The Russell Berrie Foundation, a New Jersey Nonprofit Corporation (the “Seller”), and the investors listed on the Schedule of Investors attached hereto (each individually, an “Investor” and, collectively, the “Buyer”).

WITNESSETH:

WHEREAS, the Seller owns an aggregate of 8,799,466 shares of common stock, stated value $.10 per share (such shares, the “RBC Stock”), of Russ Berrie and Company, Inc., a New Jersey corporation (the “Company”), which shares constitute approximately 42.2% of the issued and outstanding shares of Company common stock; and

WHEREAS, each Investor desires to purchase, and the Seller desires to sell, upon the terms and conditions set forth herein, the number of shares of RBC Stock set forth opposite such Investor’s name in column (3) on the Schedule of Investors attached hereto;

NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth below and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:

ARTICLE 1

PURCHASE AND SALE OF SHARES

Section 1.1 Purchase and Sale of RBC Stock. Subject to the satisfaction of the conditions set forth in Sections 5.1 and 5.2 hereof (or the waiver thereof by the party entitled to waive that condition), the Seller shall sell to each Investor, and each Investor shall purchase from the Seller on the Closing Date (as defined below), the number of shares of RBC Stock set forth opposite such Investor’s name in column (3) on the Schedule of Investors attached hereto (the “Closing”).

Section 1.2 Purchase Price. The purchase price for the RBC Stock to be purchased by each Investor at the Closing shall be $11.30 per share (the “Purchase Price”).

Section 1.3 Form of Payment. At the Closing, each Investor shall pay the Purchase Price to the Seller for the RBC Stock being purchased by such Investor by wire transfer of immediately available funds into an account designated by the Seller.

ARTICLE 2
CLOSING

Section 2.1 Closing Date. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., New York City Time, at the offices of Weil, Gotshal and Manges LLP, 767 Fifth Avenue, New York, NY 10153 (or at such other time or place as the parties may designate in writing) on that date that is one business day following the satisfaction or waiver of each condition to the Closing set forth in Sections 5.1 and 5.2 hereof (other than those conditions that may be satisfied only by a delivery at or action to be taken at the Closing), of which satisfaction the Seller shall give the Buyer same day notice, or on such other date as the parties may agree.

Section 2.2 Items To Be Delivered by the Seller. At the Closing, and subject to the terms and conditions contained herein, the Seller shall cause to be issued and delivered to each Investor one or more share certificates, registered in the name of such Investor, representing that number of shares of RBC Stock being purchased by such Investor, or confirmation of book-entry transfer of such shares into a Depository Trust Company account designated by each Investor, and each of the other items described in Section 5.1 hereof.

Section 2.3 Items to be Delivered by the Buyer. At the Closing, and subject to the terms and conditions contained herein, the Buyer shall deliver to the Seller the Purchase Price for the RBC Stock being purchased by the Buyer, and each of the other items described in Section 5.2 hereof.

Section 2.4 Support of Company Indemnity Obligations. The Buyer shall not (i) for seven years following the Closing vote any shares of the Company owned by it or which it has the power to vote in favor of any amendment of the certificate of incorporation or the by-laws of the Company or any other action on the part of the Company that changes in a manner adverse to the individuals who are directors or officers of the Company and are also trustees or officers of the Seller or are also 2002A Trustees (as defined below) the provisions of the Company’s certificate of incorporation or by-laws providing for indemnification of the Company’s directors and officers (the Seller acknowledges and agrees that voting in favor of any future transaction in which the Company may be merged with or into another entity and will not survive the consummation of the transaction shall not be deemed to implicate this Section 2.4) or (ii) cause the Company to (which, in the case of any directors nominated by the Buyer, shall be limited to using its commercially reasonable efforts to cause such designees not to) take any action that would prevent the Company from indemnifying such individuals as so provided by such provisions or applicable law or that would exclude such individuals from the coverage afforded by the Company’s directors and officers liability insurance as from time to time in effect on the same basis as the Company’s directors and officers in office at that time.

ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER

The Seller hereby represents and warrants to each Investor as follows:

Section 3.1 Ownership of RBC Stock. The Seller is the sole record and beneficial owner of the RBC Stock, except that pursuant to the Receipt, Release, Refunding and Share Voting and Disposition Agreement (the “2002A Agreement”), dated as of March 28, 2006, among the trustees of the Russell Berrie 2002A Trust (collectively, the “2002A Trustees”) and the Seller (a true and complete copy of which has been made available to the Buyer), the 2002A Trustees have the power to determine the voting and any disposition of 4,624,451 shares of the RBC Stock (including to approve the sale thereof by the Seller pursuant hereto) and except that certain of the shares of RBC Stock are held for the Seller’s account of record by a nominee of the Seller’s broker. The RBC Stock constitutes 100% of the shares of common stock of the Company owned by the Seller and the Seller has no options, warrants or other rights to acquire common stock of the Seller. The 2002A Trust Agreement shall terminate with respect to the RBC Stock at the Closing and, from and after the Closing, the 2002A Trustees shall have no voting, dispositive or other rights with respect to the RBC Stock. Following the Closing, the Buyer shall have no obligations to the 2002A Trustees of any kind by virtue of its purchase of the RBC Stock and the 2002A Trustees shall have no right to assert any claim against the Buyer in connection with the 2002A Agreement. The Seller has valid marketable title to the RBC Stock free and clear of any lien, security interest or encumbrance of any nature and free of any claim by any person to or against such RBC Stock, except as otherwise described above in this Section 3.1. The Seller shall, as of the Closing, have the full right, power and authority to sell, assign, transfer and convey the RBC Stock to the Purchaser as provided herein. The Seller shall transfer all of its right, title and interest in and to the RBC Stock to each Investor free and clear of any lien, security interest, or other encumbrance of any nature and free of any claim by any person or entity to or against the RBC Stock.

Section 3.2 Authorization, Validity and Enforceability. This Agreement and the transactions contemplated of the Seller hereby have been duly authorized by the Seller (including by any necessary action of the 2002A Trustees). This Agreement has been duly executed and delivered by the Seller and constitutes the valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, and the execution, delivery and performance of this Agreement by it will not violate or result in a default under any provision of any material commitment, agreement or instrument to which the Seller is a party or by which the Seller is bound and will not contravene any law, rule or regulation of any administrative agency or governmental body, or any order, writ, injunction or decree of any court, administrative agency or governmental agency applicable to the Seller.

a material adverse effect on the transactions contemplated hereby. No approval by or filing with any governmental or regulatory body or other person is required for the Seller to enter into or perform this Agreement, except for such as have been received or made and except for any filings under Schedule 13D or Section 16 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as Seller may be required to make in connection with this Agreement and the transactions contemplated hereby. Based on the representation of each Investor contained in Section 4.2 hereof, the Seller has determined that the transactions contemplated hereby do not require that the Seller make filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”).

Section 3.4 [Intentionally Omitted]

Section 3.5 No Reliance. The Seller understands and acknowledges that each Investor, together with such Investor’s affiliates, has received material non-public information regarding the Company and/or the RBC Stock, including historical financial information and certain projections relating to the Company’s business. The Seller hereby represents and warrants that it is financially sophisticated with respect to the RBC Stock and the Company; it is represented on the board of directors of the Company; it is capable of obtaining all information that it deems material to the transactions contemplated hereby 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; it is capable of evaluating the risks associated with a transaction involving the RBC Stock and the Company, including the risk of transacting on the basis of information that may be materially different from the information available to the Investors, and that it is capable of sustaining any loss that may result from engaging in such a transaction on such basis without material injury; and it acknowledges that no representations have been made by any Investor in respect of this transaction or the Company except as expressly set forth in this Agreement. In light of the foregoing, the Seller hereby waives any and all claims (including, without limitation, any and all claims under any applicable securities law) it may have or may hereafter acquire against such Investor relating to any failure by such Investor to disclose to the Seller in connection with the Seller’s sale of the RBC Stock pursuant hereto any information which may be considered to be material non-public information in respect of the Company.

Section 3.6 No Intermediary. Except as otherwise disclosed by supplemental letter provided by the Seller to each Investor, 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 hereby based upon arrangements made by or on behalf of the Seller and any such fee or commission as may be payable shall be the sole responsibility of the Seller and shall be paid by the Seller.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER

Each Investor represents and warrants to Seller, with respect only to itself, as follows:

Section 4.1 Validity and Enforceability. This Agreement and the transaction contemplated of such Investor hereby have been duly authorized by such Investor. This Agreement has been duly executed and delivered by such Investor and constitutes the valid and binding obligation of such Investor, enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by it will not violate or result in a default under any provisions of any material commitment, agreement or instrument to which such Investor is a party or by which such Investor is bound, and will not contravene any law, rule or regulation of any administrative agency or governmental body or any order, writ, injunction or decree of any court, administrative agency or governmental agency applicable to such Investor.

Section 4.2 Litigation; Approvals. There are no proceedings pending or threatened, and there is no order, writ, judgment or decree affecting such Investor, which, if adversely determined, would have a material adverse effect on the transactions contemplated hereby. No approval by or filing with any governmental or regulatory body or other party is required for such Investor to enter into or perform this Agreement, except for such as have been received or made and except for any filing on Schedule 13D or Section 16 under the Exchange Act as such Investor may be required to make in connection with the transactions contemplated hereby. Such Investor has determined that the transactions contemplated hereby do not require that such Investor make filings under the HSR Act.

Section 4.3 Certain Securities Law Matters. Such Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated pursuant to the Securities Act of 1933. Such Investor has substantial experience in evaluating and investing in securities in companies similar to the Company so that such Investor is capable of evaluating the merits and risks of such Investor’s investment in the Company and has the capacity to protect such Investor’s own interests. Such Investor is acquiring the RBC Stock for investment for the Investor’s own account, not as a nominee or agent, and not with the view towards, or for resale in connection with, any public sale or distribution thereof; provided, however, that by making the representations herein, such Investor does not agree to hold any of the RBC Stock being purchased by it for any minimum or other specific term and reserves the right to dispose of the RBC Stock being purchased by it at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act of 1933. Such Investor understands that the offer and sale of the RBC Stock has not been, and will not be, registered under applicable Federal or state securities laws, except pursuant to the Registration Rights Agreement.

Section 4.4 No Reliance. Such Investor acknowledges and agrees that, in negotiating and entering into this Agreement, (i) it has relied on no representations made

by the Seller, the Company, or any director, officer, employee, investment banker, legal counsel or other representative or agent thereof other than those of the Seller expressly set forth herein or those of the Company expressly set forth in an agreement signed by the Company and delivered to such Investor referred to herein, (ii) it has been afforded the opportunity to do a due diligence review of the business and affairs of the Company, including to ask such questions of the Company, as it deems appropriate and material to the transactions contemplated hereby and that its requests for information and questions have been addressed to its satisfaction and (iii) it has not relied on the Seller, the Company or any director, officer, employee, investment banker, legal counsel or other representative or agent thereof with respect to the sufficiency of its due diligence or the information provided to it and has relied on its own expertise and judgment in deciding the sufficiency thereof. Such Investor understands and acknowledges that the Seller has received material non-public information regarding the Company and/or the RBC Stock, including historical financial information and certain projections relating to the Company’s business. Such Investor hereby represents and warrants that it is financially sophisticated with respect to the RBC Stock and the Company; it is capable of evaluating the risks associated with a transaction involving the RBC Stock and the Company, including the risk of transacting on the basis of information that may be materially different from the information available to the Seller, and that it is capable of sustaining any loss that may result from engaging in such a transaction on such basis without material injury. In light of the foregoing, such Investor hereby waives any and all claims (including, without limitation, any and all claims under any applicable securities law) it may have or may hereafter acquire against the Seller relating to any failure by the Seller to disclose to such Investor in connection with such Investor’s purchase of the RBC Stock pursuant hereto any information which may be considered to be material non-public information in respect of the Company.

Section 4.5 No Intermediary. 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 such Investor.

ARTICLE 5
CONDITIONS TO CLOSING

Section 5.1 Buyer Conditions. The obligation of each Investor hereunder to purchase the number of shares of RBC Stock set forth opposite such Investor’s name in column (3) on the Schedule of Investors attached hereto at the Closing is subject to the satisfaction, at or before the Closing Date, of the following conditions, provided that these conditions are for each Investor’s sole benefit and may be waived by such Investor at any time in its sole discretion by providing the Seller with prior written notice thereof:

at and as of the Closing Date and shall be true and correct in all material respects as of such date, except to the extent that any representation or warranty is made as of a specified date, in which case such representation and warranty shall be true and correct in all material respects as of such date, and (b) the Seller shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by the Seller prior to or on the Closing Date. Each Investor shall have been furnished with a certificate in customary form of an appropriate trustee or director of the Seller, dated as of the Closing Date, certifying to the effect of this Section 5.1.1.

5.1.2 No Actions. No action, suit or proceeding by any court or governmental or regulatory authority shall be pending, no investigation by any governmental or regulatory authority shall have been commenced and no action, suit or proceeding by any governmental or regulatory authority shall have been threatened against an Investor, the Seller or the Company or any of their respective principals, trustees, officers or directors seeking to restrain, prevent or change the transactions contemplated hereby or questioning the legality or validity of any such transactions or seeking damages in connection with any such transactions.

5.1.3 Consents. All consents, approvals and authorizations of governmental and regulatory authorities and all filings with and notifications of governmental authorities and regulatory agencies or other entities which regulate the business of the Company necessary to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been obtained or effected.

5.1.4 No Material Adverse Change. There shall have been no material adverse change since the date hereof in the business, assets, financial condition, results of operations or prospects of the Company.

5.1.5 Resignations from Board of Directors; Filling of Vacancies. As of the Closing, the Board of Directors of the Company shall be comprised of nine (9) members as provided by the agreement referred to in Section 5.1.6 hereof as if the Company’s annual meeting had been held on that date and all of the Buyer’s nominees had been elected to the Board. Effective as of the Closing, Angelica Barrie shall have resigned from the Board.

5.1.6 Registration Rights Agreement. The Company and each Investor shall have entered into a Registration Rights Agreement substantially in a form attached hereto, providing for, among other things, (a) the Company’s agreement to nominate certain representatives of the Buyer for election to the Board of Directors of the Company and to facilitate the election of such representatives, and (b) certain registration rights of the Buyer with respect to the RBC Stock being purchased hereunder.

5.1.7 Opinion of Counsel. The Buyer shall have received the legal opinion of the Seller’s counsel, dated the Closing Date, substantially in a form attached hereto.

5.1.8 Approval of Documents. The form and substance of all certificates, instruments, opinions, and other documents required to be delivered to the Buyer under this Agreement shall be reasonably satisfactory in all respects to the Buyer and its counsel.

5.1.9 Company Resolutions. The Buyer shall have received a true, complete and accurate copy, as delivered by the Company to the Seller, of resolutions passed by the Board of Directors of the Company on August 4, 2006, approving the transactions on the part of the Company contemplated by this Agreement (including, without limitation, approving the Company’s execution and delivery of the Registration Rights Agreement and, approving for purposes of the New Jersey Shareholders Protection Act, any “business combination” transaction which may be proposed to be engaged in between such Investor and the Company at any time or from time to time following the Closing, such approval to constitute advance approval of such business combination transactions under the terms of such Act); such resolutions have not been modified, rescinded or amended and remain in full force and effect.

Section 5.2 Seller’s Conditions. The obligation of the Seller hereunder to sell to each Investor the number of shares of RBC Stock set forth opposite such Investor’s name in column (3) on the Schedule of Investors attached hereto at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Seller’s sole benefit and may be waived by the Seller at any time in its sole discretion by providing each Investor with prior written notice thereof:

5.2.1 Representations and Warranties. Except as otherwise contemplated or permitted hereby, (a) the representations and warranties of such Investor contained in this Agreement or in any certificate or document to be delivered to the Seller by such Investor pursuant hereto shall be deemed to have been made again at and as of the Closing Date and shall be true and correct in all material respects as of such date, except to the extent that any representation or warranty is made as of a specified date, in which case such representation and warranty shall be true and correct as of such date in all material respects, and (b) such Investor shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by such Investor prior to or on the Closing Date. The Seller shall have been furnished with a certificate in customary form of an authorized signatory of such Investor, dated as of the Closing Date, certifying to the effect of this Section 5.2.1.

5.2.2 No Actions. No action, suit or proceeding by any court or governmental or regulatory authority shall be pending, no investigation by any governmental or regulatory authority shall have been commenced and no action, suit or proceeding by any governmental or regulatory authority shall have been threatened against the Seller, the Company or such Investor or any of their respective principals, trustees, officers or directors seeking to restrain, prevent or change the transactions contemplated hereby or questioning the legality or validity of any such transactions or seeking damages in connection with any such transactions.

5.2.3 Consents. All consents, approvals and authorizations of governmental and regulatory authorities and all filings with and notifications of governmental authorities and regulatory agencies or other entities which regulate the business of the Company necessary to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been obtained or effected.

5.2.4 Approval of Documents. The form and substance of all certificates, instruments and other documents required to be delivered to the Seller under this Agreement shall be reasonably satisfactory in all respects to the Seller and its counsel.

ARTICLE 6
MISCELLANEOUS

Section 6.1 Survival of Agreements. All the representations and warranties made herein shall survive the execution and delivery of this Agreement and the sale and delivery of the RBC Stock pursuant hereto for, and only for, a period of two (2) years from the Closing Date, except for Sections 3.1, 3.2, 3.6 and 4.1 which shall survive until the expiration of the applicable statute of limitations.

Section 6.2 Expenses. Each party hereto shall pay its own expenses in connection with the transactions contemplated hereby.

Section 6.3 Notices. All notices, requests, consents, or other communication hereunder shall be in writing and shall be delivered personally or by courier or mailed by first class registered or certified mail to, in the case of the Investors, their respective addresses set forth on the Schedule of Investors attached hereto and, in the case of the Seller, to The Russell Berrie Foundation, Glenpointe Centre East-7^th Floor, 300 Frank W. Burr Blvd, Teaneck, New Jersey 07766, Facsimile: (201) 287-0826, Attention: Ilan Kaufthal, with a copy to Weil, Gotshal and Manges LLP, 767 Fifth Avenue, New York, NY 10153, Facsimile: (212) 310-8007, Attention: Robert Messineo, Esq.

Section 6.4 Captions and Section Headings. As used herein, captions and section headings are for convenience only and are not a part of this Agreement and shall not be used in construing it.

Section 6.5 Entire Agreement. This Agreement and the other documents delivered pursuant hereto and thereto, or incorporated by reference herein, contain the entire agreement between the parties hereto concerning the transactions contemplated herein and supersede all prior agreements or understandings between the parties hereto relating to the subject matter hereof.

Section 6.7 Termination; Amendment. This Agreement may be terminated at any time by the Buyer or the Seller, by notice given to the other, if the Closing has not occurred by August 30, 2006 other than by reason of the breach of this Agreement by the terminating party, and upon such termination neither the Buyer nor the Seller shall have any obligation or liability hereunder (except for damages arising out of any such breach). This Agreement may be amended, supplemented or interpreted at any time, but only by a written agreement executed by the parties hereto.

Section 6.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

Section 6.9 Severability. If any one or more of the provisions of this agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, each party waives any provision of law which renders any provision of this Agreement invalid, illegal or unenforceable in any respect.

Section 6.10 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. No assignment of this Agreement or of any rights or obligations hereunder may be made by either the Seller or the Buyer, directly or indirectly (by operation of law or otherwise), without the prior written consent of the other parties hereto.

irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT.

Section 6.12 Independent Nature of Investor’s Obligations and Rights. The obligations of each Investor under this Agreement are several and not joint with the obligations of any other Investor, and no Investor shall be responsible in any way for the performance of the obligations of any other Investor under this Agreement. Nothing contained herein, and no action taken by any Investor pursuant hereto, shall be deemed to constitute the Investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Investors are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement and the Seller acknowledges that the Investors are not acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement. Each Investor confirms that it has independently participated in the negotiation of the transaction contemplated hereby with the advice of its own counsel and advisors. Each Investor shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any other Investor to be joined as an additional party in any proceeding for such purpose.

IN WITNESS WHEREOF, each Investor and the Seller have caused their respective signature page to this Securities Purchase Agreement to be duly executed as of the date first written above.


		SELLER:

		THE RUSSELL BERRIE FOUNDATION, A NEW JERSEY NONPROFIT CORPORATION
		By:

		/s/ MYRON ROSNER, Trustee


		INVESTORS:

		PRENTICE CAPITAL PARTNERS, LP
		By:		Prentice Capital GP, LLC

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel


		PRENTICE CAPITAL PARTNERS QP, LP
		By:		Prentice Capital GP, LLC

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel


		PRENTICE CAPITAL OFFSHORE, LTD.
		By:		Prentice Capital Management, LP, its investment manager

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel


		GPC XLIII, LLC
		By:		Prentice Capital Management, LP, its advisor

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel


		PEC I, LLC
		By:		Prentice Capital Management, LP, its manager

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel


		S.A.C. CAPITAL ASSOCIATES, LLC
		By:		S.A.C. Capital Advisors, LLC

		By:		/s/ PETER NUSSBAUM

				Name: Peter Nussbaum
				Title: General Counsel


		PRENTICE SPECIAL OPPORTUNITIES MASTER, L.P.
		By:		Prentice Capital GP II, LP, its General Partner

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel

		PRENTICE SPECIAL OPPORTUNITIES, LP
		By:		Prentice Capital GP II, LP, its General Partner

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel

SCHEDULE OF INVESTORS


(1)	(2)	(3)*	(4)	(5)

	Address and	Number of		Legal Representative’s
Buyer	Facsimile Number	Acquired Shares	Purchase Price	Address and Facsimile Number


Prentice Capital Partners, LP	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471			Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376

Prentice Capital Partners QP. LLC	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471			Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376

Prentice Capital Offshore, Ltd.	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471			Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376

GPC XLIII, LLC	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471			Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376

PEC I, LLC	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471			Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376

Prentice Special Opportunities Master, L.P.	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471			Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376

Prentice Special Opportunities, LP	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471			Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376

* To be allocated among the Purchasers by the Purchasers promptly after the date hereof.


(1)	(2)	(3)	(4)	(5)

	Address and	Number of		Legal Representative’s
Buyer	Facsimile Number	Acquired Shares	Purchase Price	Address and Facsimile Number


S.A.C. Capital Associates, LLC	c/o S.A.C. Capital Advisors, LLC 72 Cummings Point Road Stamford, Connecticut 06902 Attn: Peter Nussbaum Telephone: (203) 890-2094 Facsimile: (203) 890-2393 With a copy to: c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471

EX-99.3 4 e19727exv99w3.htm EX-99.3: AMENDED AND RESTATED SHARE PURCHASE AGREEMENT EX-99.3:

Exhibit 3

AMENDED AND RESTATED SHARE PURCHASE AGREEMENT

AMENDED AND RESTATED SHARE PURCHASE AGREEMENT (the “Agreement”), dated as of August 9, 2006 by and among The Russell Berrie Foundation, a New Jersey Nonprofit Corporation (the “Seller”), and the investors listed on the Schedule of Investors attached hereto (each individually, an “Investor” and, collectively, the “Buyer”).

WITNESSETH:

WHEREAS, the parties intend that this Agreement shall amend and restate that certain Share Purchase Agreement, dated as of August 4, 2006 (the “Restated Agreement”), by and among the Seller and the Buyer.

ARTICLE 1
PURCHASE AND SALE OF SHARES

Section 1.2 Purchase Price. The purchase price for the RBC Stock to be purchased by each Investor at the Closing shall be $11.30 per share (the “Purchase Price”).

ARTICLE 2
CLOSING

Section 2.2 Items To Be Delivered by the Seller. At the Closing, and subject to the terms and conditions contained herein, the Seller shall (i) deliver to the Company’s transfer agent one or more share certificates representing the RBC Stock purchased by all of the Investors hereunder and that is represented by certificates owned by the Seller, accompanied by (A) a duly endorsed stock power in blank or other appropriate instrument of transfer as may be required by the transfer agent (duly endorsed or otherwise in form sufficient for transfer and reasonably satisfactory to each Investor), and (B) written instructions to the transfer agent to issue new share certificates to the Investors in accordance with the allocations set forth on the Schedule of Investors attached hereto and (ii) cause to be issued to such Investors confirmation of book entry transfer of such shares into Depository Trust Company accounts of the Investors as may be designated by the Investors, as well as deliver to the Investors each of the other items described in Section 5.1 hereof. After the Closing, in addition to its obligations under Section 6.6 hereof, the Seller shall cooperate with the Investors, and use its best efforts, to cause appropriate share certificates representing the RBC Stock sold to the Investors hereunder to be recorded in the name of the Investors, as the Investors shall reasonably request.

or by-laws providing for indemnification of the Company’s directors and officers (the Seller acknowledges and agrees that voting in favor of any future transaction in which the Company may be merged with or into another entity and will not survive the consummation of the transaction shall not be deemed to implicate this Section 2.4) or (ii) cause the Company to (which, in the case of any directors nominated by the Buyer, shall be limited to using its commercially reasonable efforts to cause such designees not to) take any action that would prevent the Company from indemnifying such individuals as so provided by such provisions or applicable law or that would exclude such individuals from the coverage afforded by the Company’s directors and officers liability insurance as from time to time in effect on the same basis as the Company’s directors and officers in office at that time.

ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER

The Seller hereby represents and warrants to each Investor as follows:

Section 3.1 Ownership of RBC Stock. The Seller is the sole record and beneficial owner of the RBC Stock, except that pursuant to the Receipt, Release, Refunding and Share Voting and Disposition Agreement (the “2002A Agreement”), dated as of March 28, 2006, among the Stock Trustees of The Russell Berrie 2002A Trust (as defined in the Indenture of The Russell Berrie 2002A Trust) (collectively, the “2002A Trustees”) and the Seller (a true and complete copy of which has been made available to the Buyer), the 2002A Trustees have the power to determine the voting and any disposition of 4,624,451 shares of the RBC Stock (including to approve the sale thereof by the Seller pursuant hereto) and except that certain of the shares of RBC Stock are held for the Seller’s account of record by a nominee of the Seller’s broker. The RBC Stock constitutes 100% of the shares of common stock of the Company owned by the Seller and the Seller has no options, warrants or other rights to acquire common stock of the Seller. The 2002A Trust Agreement shall terminate with respect to the RBC Stock at the Closing and, from and after the Closing, the 2002A Trustees shall have no voting, dispositive or other rights with respect to the RBC Stock. Following the Closing, the Buyer shall have no obligations to the 2002A Trustees of any kind by virtue of its purchase of the RBC Stock and the 2002A Trustees shall have no right to assert any claim against the Buyer in connection with the 2002A Agreement. The Seller has valid marketable title to the RBC Stock free and clear of any lien, security interest or encumbrance of any nature and free of any claim by any person to or against such RBC Stock, except as otherwise described above in this Section 3.1. The Seller shall, as of the Closing, have the full right, power and authority to sell, assign, transfer and convey the RBC Stock to the Purchaser as provided herein. The Seller shall transfer all of its right, title and interest in and to the RBC Stock to each Investor free and clear of any lien, security interest, or other encumbrance of any nature and free of any claim by any person or entity to or against the RBC Stock.

Section 3.2 Authorization, Validity and Enforceability. This Agreement and the transactions contemplated of the Seller hereby have been duly authorized by the

Seller (including by any necessary action of the 2002A Trustees). This Agreement has been duly executed and delivered by the Seller and constitutes the valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, and the execution, delivery and performance of this Agreement by it will not violate or result in a default under any provision of any material commitment, agreement or instrument to which the Seller is a party or by which the Seller is bound and will not contravene any law, rule or regulation of any administrative agency or governmental body, or any order, writ, injunction or decree of any court, administrative agency or governmental agency applicable to the Seller.

Section 3.3 Litigation; Approvals. There are no proceedings pending or, to the knowledge of the Seller, threatened, and there is no order, writ, judgment or decree affecting the Seller which, if adversely determined, would reasonably be expected to have a material adverse effect on the transactions contemplated hereby. No approval by or filing with any governmental or regulatory body or other person is required for the Seller to enter into or perform this Agreement, except for such as have been received or made and except for any filings under Schedule 13D or Section 16 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as Seller may be required to make in connection with this Agreement and the transactions contemplated hereby. Based on the representation of each Investor contained in Section 4.2 hereof, the Seller has determined that the transactions contemplated hereby do not require that the Seller make filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”).

Section 3.4 [Intentionally Omitted]

pursuant hereto any information which may be considered to be material non-public information in respect of the Company.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER

Each Investor represents and warrants to Seller, with respect only to itself, as follows:

distribution thereof; provided, however, that by making the representations herein, such Investor does not agree to hold any of the RBC Stock being purchased by it for any minimum or other specific term and reserves the right to dispose of the RBC Stock being purchased by it at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act of 1933. Such Investor understands that the offer and sale of the RBC Stock has not been, and will not be, registered under applicable Federal or state securities laws, except pursuant to the Investor Rights Agreement.

Section 4.4 No Reliance. Such Investor acknowledges and agrees that, in negotiating and entering into this Agreement, (i) it has relied on no representations made by the Seller, the Company, or any director, officer, employee, investment banker, legal counsel or other representative or agent thereof other than those of the Seller expressly set forth herein or those of the Company expressly set forth in an agreement signed by the Company and delivered to such Investor referred to herein, (ii) it has been afforded the opportunity to do a due diligence review of the business and affairs of the Company, including to ask such questions of the Company, as it deems appropriate and material to the transactions contemplated hereby and that its requests for information and questions have been addressed to its satisfaction and (iii) it has not relied on the Seller, the Company or any director, officer, employee, investment banker, legal counsel or other representative or agent thereof with respect to the sufficiency of its due diligence or the information provided to it and has relied on its own expertise and judgment in deciding the sufficiency thereof. Such Investor understands and acknowledges that the Seller has received material non-public information regarding the Company and/or the RBC Stock, including historical financial information and certain projections relating to the Company’s business. Such Investor hereby represents and warrants that it is financially sophisticated with respect to the RBC Stock and the Company; it is capable of evaluating the risks associated with a transaction involving the RBC Stock and the Company, including the risk of transacting on the basis of information that may be materially different from the information available to the Seller, and that it is capable of sustaining any loss that may result from engaging in such a transaction on such basis without material injury. In light of the foregoing, such Investor hereby waives any and all claims (including, without limitation, any and all claims under any applicable securities law) it may have or may hereafter acquire against the Seller relating to any failure by the Seller to disclose to such Investor in connection with such Investor’s purchase of the RBC Stock pursuant hereto any information which may be considered to be material non-public information in respect of the Company.

ARTICLE 5
CONDITIONS TO CLOSING

5.1.1 Representations and Warranties. Except as otherwise contemplated or permitted hereby, (a) the representations and warranties of the Seller contained in this Agreement or in any certificate or document to be delivered to the Buyer pursuant hereto shall be deemed to have been made again at and as of the Closing Date and shall be true and correct in all material respects as of such date, except to the extent that any representation or warranty is made as of a specified date, in which case such representation and warranty shall be true and correct in all material respects as of such date, and (b) the Seller shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by the Seller prior to or on the Closing Date. Each Investor shall have been furnished with a certificate in customary form of an appropriate trustee or director of the Seller, dated as of the Closing Date, certifying to the effect of this Section 5.1.1.

5.1.5 Resignation from the Board. Effective as of the Closing, the directors of the Company who are also directors of the Foundation shall have resigned from the Board.

5.1.6 Investor Rights Agreement. The Company and each Investor shall have entered into an Investor Rights Agreement substantially in a form attached hereto, providing for, among other things, (a) the Company’s agreement to nominate certain representatives of the Buyer for election to the Board of Directors of the Company and to facilitate the election of such representatives, and (b) certain registration rights of the Buyer with respect to the RBC Stock being purchased hereunder.

5.1.7 Opinion of Counsel. The Buyer shall have received the legal opinion of the Seller’s counsel, dated the Closing Date, substantially in a form attached hereto.

5.1.9 Company Resolutions. The Buyer shall have received a true, complete and accurate copy, as delivered by the Company to the Seller, of resolutions passed by the Special Committee of the Board of Directors of the Company on August 4, 2006 and on August 9, 2006, approving the transactions on the part of the Company contemplated by this Agreement (including, without limitation, approving the Company’s execution and delivery of the Investor Rights Agreement and, approving for purposes of the New Jersey Shareholders Protection Act, any “business combination” transaction which may be proposed to be engaged in between such Investor and the Company at any time or from time to time following the Closing, such approval to constitute advance approval of such business combination transactions under the terms of such Act); such resolutions have not been modified, rescinded or amended and remain in full force and effect.

delivered to the Seller by such Investor pursuant hereto shall be deemed to have been made again at and as of the Closing Date and shall be true and correct in all material respects as of such date, except to the extent that any representation or warranty is made as of a specified date, in which case such representation and warranty shall be true and correct as of such date in all material respects, and (b) such Investor shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by such Investor prior to or on the Closing Date. The Seller shall have been furnished with a certificate in customary form of an authorized signatory of such Investor, dated as of the Closing Date, certifying to the effect of this Section 5.2.1.

ARTICLE 6
MISCELLANEOUS

Section 6.2 Expenses. Each party hereto shall pay its own expenses in connection with the transactions contemplated hereby.

Section 6.4 Captions and Section Headings. As used herein, captions and section headings are for convenience only and are not a part of this Agreement and shall not be used in construing it.

Section 6.6 Additional Documents. The parties hereto will, at any time after the date hereof, sign, execute and deliver, or cause others so to do, all such powers of attorney, deeds, assignments, documents and instruments and do or cause to be done all such other acts and deeds as may be necessary or proper to carry out the transactions contemplated by this Agreement, including, in the case of the Seller, taking any and all action necessary to cause the Company’s transfer agent to remove any reference to the 2002A Agreement on the share certificates to be delivered to each Investor representing the RBC Stock.

Section 6.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

Section 6.11 Governing Law. This Agreement, and all matters arising directly or indirectly hereunder, shall be governed by the laws of the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT.

IN WITNESS WHEREOF, each Investor and the Seller have caused their respective signature page to this Securities Purchase Agreement to be duly executed as of the date first written above.


		SELLER:

		THE RUSSELL BERRIE FOUNDATION, A NEW JERSEY NONPROFIT CORPORATION
		By:

		/s/ MYRON ROSNER, Secretary



		INVESTORS:

		PRENTICE CAPITAL PARTNERS, LP By: Prentice Capital GP, LLC

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel

		PRENTICE CAPITAL PARTNERS QP, LP By: Prentice Capital GP, LLC

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel

		PRENTICE CAPITAL OFFSHORE, LTD. By: Prentice Capital Management, LP, its investment manager

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel


		GPC XLIII, LLC By: Prentice Capital Management, LP, its advisor

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel

		PEC I, LLC By: Prentice Capital Management, LP, its manager

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel

		S.A.C. CAPITAL ASSOCIATES, LLC By: S.A.C. Capital Advisors, LLC

		By:		/s/ PETER NUSSBAUM

				Name: Peter Nussbaum
				Title: General Counsel

		PRENTICE SPECIAL OPPORTUNITIES MASTER, L.P. By: Prentice Capital GP II, LP, its General Partner

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel

		PRENTICE SPECIAL OPPORTUNITIES, LP By: Prentice Capital GP II, LP, its General Partner

		By:		/s/ MATTHEW HOFFMAN

				Name: Matthew Hoffman
				Title: General Counsel

SCHEDULE OF INVESTORS


(1)	(2)	(3)		(4)		(5)
	Address and	Number of				Legal Representative’s
Buyer	Facsimile Number	Acquired Shares		Purchase Price		Address and Facsimile Number


Prentice Capital Partners, LP	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471		100,340	$	1,133,842	Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376

Prentice Capital Partners QP, LP	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471		484,357	$	5,473,234.10	Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376

Prentice Capital Offshore, Ltd.	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471		1,063,272	$	12,014,973.60	Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376

GPC XLIII, LLC	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471		230,335	$	2,602,785.50	Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376

PEC I, LLC	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471		351,979	$	3,977,362.70	Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376

Prentice Special Opportunities Master, L.P.	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471		646,252	$	7,302,647.60	Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376

Prentice Special Opportunities, LP	c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471		233,694	$	2,640,742.60	Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 Attention: Eleazer Klein, Esq. Facsimile: (212) 593-5955 Telephone: (212) 756-2376


(1)	(2)	(3)		(4)		(5)
	Address and	Number of				Legal Representative’s
Buyer	Facsimile Number	Acquired Shares		Purchase Price		Address and Facsimile Number


S.A.C. Capital Associates, LLC	c/o S.A.C. Capital Advisors, LLC 72 Cummings Point Road Stamford, Connecticut 06902 Attn: Peter Nussbaum Telephone: (203) 890-2094 Facsimile: (203) 890-2393 With a copy to: c/o Prentice Capital Management, L.P. 623 Fifth Avenue, 32nd Floor Attn: Matthew Hoffman Telephone: (212) 756-8051 Facsimile: (212) 756-1471		1,289,504	$	14,571,395.20

EX-99.4 5 e19727exv99w4.htm EX-99.4: SHARE PURCHASE AGREEMENT EX-99.4

Exhibit 4

SHARE PURCHASE AGREEMENT

SHARE PURCHASE AGREEMENT (the “Agreement”), dated as of August 9, 2006 by and among The Russell Berrie Foundation, a New Jersey Nonprofit Corporation (the “Seller”), and D. E. Shaw Laminar Portfolios, L.L.C. (the “Investor”).

WITNESSETH:

WHEREAS, the Seller owns an aggregate of 8,799,466 shares of common stock, stated value $.10 per share, of Russ Berrie and Company, Inc., a New Jersey corporation (the “Company”), which shares constitute approximately 42.2% of the issued and outstanding shares of Company common stock; and

WHEREAS, the Investor desires to purchase, and the Seller desires to sell, upon the terms and conditions set forth herein, 4,399,733 shares of common stock of the Company (the “RBC Stock”);

ARTICLE 1
PURCHASE AND SALE OF SHARES

Section 1.1 Purchase and Sale of RBC Stock. Subject to the satisfaction of the conditions set forth in Sections 5.1 and 5.2 hereof (or the waiver thereof by the party entitled to waive that condition), the Seller shall sell to the Investor, and the Investor shall purchase from the Seller on the Closing Date (as defined below), the RBC Stock set forth opposite the Investor’s name in column (3) on the Schedule of Investors attached hereto (the “Closing”).

Section 1.2 Purchase Price. The purchase price for the RBC Stock to be purchased by the Investor at the Closing shall be $11.30 per share (the “Purchase Price”).

Section 1.3 Form of Payment. At the Closing, the Investor shall pay the Purchase Price to the Seller for the RBC Stock by wire transfer of immediately available funds into an account designated by the Seller.

ARTICLE 2
CLOSING

satisfaction or waiver of each condition to the Closing set forth in Sections 5.1 and 5.2 hereof (other than those conditions that may be satisfied only by a delivery at or action to be taken at the Closing), of which satisfaction the Seller shall give the Investor same day notice, or on such other date as the parties may agree.

Section 2.2 Items To Be Delivered by the Seller. At the Closing, and subject to the terms and conditions contained herein, the Seller shall deliver (i) to the Investor one or more share certificates representing the RBC Stock to be purchased by the Investor hereunder and that is represented by certificates owned by the Seller, accompanied by a duly endorsed stock power in blank or other appropriate instrument of transfer (duly endorsed and otherwise in form sufficient for transfer and reasonably satisfactory to each Investor) and (ii) cause to be issued to the Investor confirmation of book entry transfer of such of the remaining shares of the RBC Stock as are held for the Seller’s benefit in a Depository Trust Company account into such Depository Trust Company account of the Investor as may be designated by the Investor, as well as deliver each of the other items described in Section 5.1 hereof. After the Closing, in addition to its obligations under Section 6.6 hereof, the Seller shall cooperate with the Investor, and use its best efforts, to cause appropriate share certificates representing the RBC Stock sold to the Investor hereunder to be recorded in the name of the Investor, as the Investor shall reasonably request.

Section 2.3 Items to be Delivered by the Investor. At the Closing, and subject to the terms and conditions contained herein, the Investor shall deliver to the Seller the Purchase Price for the RBC Stock being purchased by the Investor, and each of the other items described in Section 5.2 hereof.

Section 2.4 Support of Company Indemnity Obligations. The Investor shall not (i) for seven years following the Closing vote any shares of the Company owned by it or which it has the power to vote in favor of any amendment of the certificate of incorporation or the by-laws of the Company or any other action on the part of the Company that changes in a manner adverse to the individuals who are directors or officers of the Company and are also trustees or officers of the Seller or are also 2002A Trustees (as defined below) the provisions of the Company’s certificate of incorporation or by-laws providing for indemnification of the Company’s directors and officers (the Seller acknowledges and agrees that voting in favor of any future transaction in which the Company may be merged with or into another entity and will not survive the consummation of the transaction shall not be deemed to implicate this Section 2.4) or (ii) cause the Company to (which, in the case of any directors nominated by the Investor, shall be limited to using its commercially reasonable efforts to cause such designees not to) take any action that would prevent the Company from indemnifying such individuals as so provided by such provisions or applicable law or that would exclude such individuals from the coverage afforded by the Company’s directors and officers liability insurance as from time to time in effect on the same basis as the Company’s directors and officers in office at that time.

ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE SELLER

The Seller hereby represents and warrants to the Investor as follows:

Section 3.1 Ownership of RBC Stock. The Seller is the sole record and beneficial owner of the RBC Stock, except that pursuant to the Receipt, Release, Refunding and Share Voting and Disposition Agreement (the “2002A Agreement”), dated as of March 28, 2006, among the Stock Trustees of The Russell Berrie 2002A Trust (as defined in the Indenture of The Russell Berrie 2002A Trust) (collectively, the “2002A Trustees”) and the Seller (a true and complete copy of which has been made available to the Investor), the 2002A Trustees have the power to determine the voting and any disposition of 4,624,451 shares of the RBC Stock (including to approve the sale thereof by the Seller pursuant hereto) and except that certain of the shares of RBC Stock are held for the Seller’s account of record by a nominee of the Seller’s broker. The RBC Stock constitutes 100% of the shares of common stock of the Company owned by the Seller and the Seller has no options, warrants or other rights to acquire common stock of the Seller. The 2002A Trust Agreement shall terminate with respect to the RBC Stock at the Closing and, from and after the Closing, the 2002A Trustees shall have no voting, dispositive or other rights with respect to the RBC Stock. Following the Closing, the Investor shall have no obligations to the 2002A Trustees of any kind by virtue of its purchase of the RBC Stock and the 2002A Trustees shall have no right to assert any claim against the Investor in connection with the 2002A Agreement. The Seller has valid marketable title to the RBC Stock free and clear of any lien, security interest or encumbrance of any nature and free of any claim by any person to or against such RBC Stock, except as otherwise described above in this Section 3.1. The Seller shall, as of the Closing, have the full right, power and authority to sell, assign, transfer and convey the RBC Stock to the Purchaser as provided herein. The Seller shall transfer all of its right, title and interest in and to the RBC Stock to the Investor free and clear of any lien, security interest, or other encumbrance of any nature and free of any claim by any person or entity to or against the RBC Stock.

Section 3.3 Litigation; Approvals. There are no proceedings pending or, to the knowledge of the Seller, threatened, and there is no order, writ, judgment or decree

affecting the Seller which, if adversely determined, would reasonably be expected to have a material adverse effect on the transactions contemplated hereby. No approval by or filing with any governmental or regulatory body or other person is required for the Seller to enter into or perform this Agreement, except for such as have been received or made and except for any filings under Schedule 13D or Section 16 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as Seller may be required to make in connection with this Agreement and the transactions contemplated hereby. Based on the representation of the Investor contained in Section 4.2 hereof, the Seller has determined that the transactions contemplated hereby do not require that the Seller make filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”).

Section 3.4 [Intentionally Omitted]

Section 3.5 No Reliance. The Seller understands and acknowledges that the Investor, together with the Investor’s affiliates, has received material non-public information regarding the Company and/or the RBC Stock, including historical financial information and certain projections relating to the Company’s business. The Seller hereby represents and warrants that it is financially sophisticated with respect to the RBC Stock and the Company; it is represented on the board of directors of the Company; it is capable of obtaining all information that it deems material to the transactions contemplated hereby 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; it is capable of evaluating the risks associated with a transaction involving the RBC Stock and the Company, including the risk of transacting on the basis of information that may be materially different from the information available to the Investor, and that it is capable of sustaining any loss that may result from engaging in such a transaction on such basis without material injury; and it acknowledges that no representations have been made by the Investor in respect of this transaction or the Company except as expressly set forth in this Agreement. In light of the foregoing, the Seller hereby waives any and all claims (including, without limitation, any and all claims under any applicable securities law) it may have or may hereafter acquire against the Investor relating to any failure by the Investor to disclose to the Seller in connection with the Seller’s sale of the RBC Stock pursuant hereto any information which may be considered to be material non-public information in respect of the Company.

Section 3.6 No Intermediary. Except as otherwise disclosed by supplemental letter provided by the Seller to the Investor, 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 hereby based upon arrangements made by or on behalf of the Seller and any such fee or commission as may be payable shall be the sole responsibility of the Seller and shall be paid by the Seller.

ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF INVESTOR

The Investor represents and warrants to Seller as follows:

Section 4.1 Validity and Enforceability. This Agreement and the transaction contemplated of the Investor hereby have been duly authorized by the Investor. This Agreement has been duly executed and delivered by the Investor and constitutes the valid and binding obligation of the Investor, enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by it will not violate or result in a default under any provisions of any material commitment, agreement or instrument to which the Investor is a party or by which the Investor is bound, and will not contravene any law, rule or regulation of any administrative agency or governmental body or any order, writ, injunction or decree of any court, administrative agency or governmental agency applicable to the Investor.

Section 4.2 Litigation; Approvals. There are no proceedings pending or threatened, and there is no order, writ, judgment or decree affecting the Investor, which, if adversely determined, would have a material adverse effect on the transactions contemplated hereby. No approval by or filing with any governmental or regulatory body or other party is required for the Investor to enter into or perform this Agreement, except for such as have been received or made and except for any filing on Schedule 13D or Section 16 under the Exchange Act as the Investor may be required to make in connection with the transactions contemplated hereby. The Investor has determined that the transactions contemplated hereby do not require that the Investor make filings under the HSR Act.

Section 4.3 Certain Securities Law Matters. The Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated pursuant to the Securities Act of 1933. The Investor has substantial experience in evaluating and investing in securities in companies similar to the Company so that the Investor is capable of evaluating the merits and risks of the Investor’s investment in the Company and has the capacity to protect the Investor’s own interests. The Investor is acquiring the RBC Stock for investment for the Investor’s own account, not as a nominee or agent, and not with the view towards, or for resale in connection with, any public sale or distribution thereof; provided, however, that by making the representations herein, the Investor does not agree to hold any of the RBC Stock being purchased by it for any minimum or other specific term and reserves the right to dispose of the RBC Stock being purchased by it at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act of 1933. The Investor understands that the offer and sale of the RBC Stock has not been, and will not be, registered under applicable Federal or state securities laws, except pursuant to the Investors’ Rights Agreement.

Section 4.4 No Reliance. The Investor acknowledges and agrees that, in negotiating and entering into this Agreement, (i) it has relied on no representations made by the Seller, the Company, or any director, officer, employee, investment banker, legal

counsel or other representative or agent thereof other than those of the Seller expressly set forth herein or those of the Company expressly set forth in an agreement signed by the Company and delivered to the Investor referred to herein, (ii) it has been afforded the opportunity to do a due diligence review of the business and affairs of the Company, including to ask such questions of the Company, as it deems appropriate and material to the transactions contemplated hereby and that its requests for information and questions have been addressed to its satisfaction and (iii) it has not relied on the Seller, the Company or any director, officer, employee, investment banker, legal counsel or other representative or agent thereof with respect to the sufficiency of its due diligence or the information provided to it and has relied on its own expertise and judgment in deciding the sufficiency thereof. The Investor understands and acknowledges that the Seller has received material non-public information regarding the Company and/or the RBC Stock, including historical financial information and certain projections relating to the Company’s business. The Investor hereby represents and warrants that it is financially sophisticated with respect to the RBC Stock and the Company; it is capable of evaluating the risks associated with a transaction involving the RBC Stock and the Company, including the risk of transacting on the basis of information that may be materially different from the information available to the Seller, and that it is capable of sustaining any loss that may result from engaging in such a transaction on such basis without material injury. In light of the foregoing, the Investor hereby waives any and all claims (including, without limitation, any and all claims under any applicable securities law) it may have or may hereafter acquire against the Seller relating to any failure by the Seller to disclose to the Investor in connection with the Investor’s purchase of the RBC Stock pursuant hereto any information which may be considered to be material non-public information in respect of the Company.

ARTICLE 5
CONDITIONS TO CLOSING

Section 5.1 Investor Conditions. The obligation of the Investor hereunder to purchase the RBC Stock at the Closing is subject to the satisfaction, at or before the Closing Date, of the following conditions, provided that these conditions are for the Investor’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Seller with prior written notice thereof:

made as of a specified date, in which case such representation and warranty shall be true and correct in all material respects as of such date, and (b) the Seller shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by the Seller prior to or on the Closing Date. The Investor shall have been furnished with a certificate in customary form of an appropriate trustee or director of the Seller, dated as of the Closing Date, certifying to the effect of this Section 5.1.1.

5.1.2 No Actions. No action, suit or proceeding by any court or governmental or regulatory authority shall be pending, no investigation by any governmental or regulatory authority shall have been commenced and no action, suit or proceeding by any governmental or regulatory authority shall have been threatened against the Investor, the Seller or the Company or any of their respective principals, trustees, officers or directors seeking to restrain, prevent or change the transactions contemplated hereby or questioning the legality or validity of any such transactions or seeking damages in connection with any such transactions.

5.1.5 [Intentionally Omitted]

5.1.6 Investors’ Rights Agreement. The Company and the Investor shall have entered into a Investors’ Rights Agreement substantially in a form attached hereto, providing for, among other things, (a) the Company’s agreement to nominate certain representatives of the Investor for election to the Board of Directors of the Company and to facilitate the election of such representatives, and (b) certain registration rights of the Investor with respect to the RBC Stock being purchased hereunder.

5.1.7 Opinion of Counsel. The Investor shall have received the legal opinion of the Seller’s counsel, dated the Closing Date, substantially in a form attached hereto.

5.1.8 Approval of Documents. The form and substance of all certificates, instruments, opinions, and other documents required to be delivered to the Investor under this Agreement shall be reasonably satisfactory in all respects to the Investor and its counsel.

5.1.9 Company Resolutions. The Investor shall have received a true, complete and accurate copy, as delivered by the Company to the Seller, of resolutions passed by the Board of Directors of the Company on August 9, 2006 and of resolutions passed by the Special Committee of the Board of Directors on August 9, 2006, approving the transactions on the part of the Company contemplated by this Agreement (including, without limitation, approving the Company’s execution and delivery of the Investors’ Rights Agreement and, approving for purposes of the New Jersey Shareholders Protection Act, any “business combination” transaction which may be proposed to be engaged in between the Investor and the Company at any time or from time to time following the Closing, such approval to constitute advance approval of such business combination transactions under the terms of such Act); such resolutions have not been modified, rescinded or amended and remain in full force and effect.

Section 5.2 Seller’s Conditions. The obligation of the Seller hereunder to sell to the Investor the RBC Stock at the Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Seller’s sole benefit and may be waived by the Seller at any time in its sole discretion by providing the Investor with prior written notice thereof:

5.2.1 Representations and Warranties. Except as otherwise contemplated or permitted hereby, (a) the representations and warranties of the Investor contained in this Agreement or in any certificate or document to be delivered to the Seller by the Investor pursuant hereto shall be deemed to have been made again at and as of the Closing Date and shall be true and correct in all material respects as of such date, except to the extent that any representation or warranty is made as of a specified date, in which case such representation and warranty shall be true and correct as of such date in all material respects, and (b) the Investor shall have performed and complied in all material respects with all agreements and conditions required by this Agreement to be performed or complied with by the Investor prior to or on the Closing Date. The Seller shall have been furnished with a certificate in customary form of an authorized signatory of the Investor, dated as of the Closing Date, certifying to the effect of this Section 5.2.1.

5.2.2 No Actions. No action, suit or proceeding by any court or governmental or regulatory authority shall be pending, no investigation by any governmental or regulatory authority shall have been commenced and no action, suit or proceeding by any governmental or regulatory authority shall have been threatened against the Seller, the Company or the Investor or any of their respective principals, trustees, officers or directors seeking to restrain, prevent or

change the transactions contemplated hereby or questioning the legality or validity of any such transactions or seeking damages in connection with any such transactions.

ARTICLE 6
MISCELLANEOUS

Section 6.2 Expenses. Each party hereto shall pay its own expenses in connection with the transactions contemplated hereby.

Section 6.3 Notices. All notices, requests, consents, or other communication hereunder shall be in writing and shall be delivered personally or by courier or mailed by first class registered or certified mail to, in the case of the Investor, its address set forth on the Schedule of Investors attached hereto and, in the case of the Seller, to The Russell Berrie Foundation, Glenpointe Centre East-7^th Floor, 300 Frank W. Burr Blvd, Teaneck, New Jersey 07766, Facsimile: (201) 287-0826, Attention: Ilan Kaufthal, with a copy to Weil, Gotshal and Manges LLP, 767 Fifth Avenue, New York, NY 10153, Facsimile: (212) 310-8007, Attention: Robert Messineo, Esq.

Section 6.4 Captions and Section Headings. As used herein, captions and section headings are for convenience only and are not a part of this Agreement and shall not be used in construing it.

Section 6.7 Termination; Amendment. This Agreement may be terminated at any time by the Investor or the Seller, by notice given to the other, if the Closing has not occurred by August 30, 2006 other than by reason of the breach of this Agreement by the terminating party, and upon such termination neither the Investor nor the Seller shall have any obligation or liability hereunder (except for damages arising out of any such breach). This Agreement may be amended, supplemented or interpreted at any time, but only by a written agreement executed by the parties hereto.

Section 6.8 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

Section 6.10 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. No assignment of this Agreement or of any rights or obligations hereunder may be made by either the Seller or the Investor, directly or indirectly (by operation of law or otherwise), without the prior written consent of the other parties hereto.

good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT.

IN WITNESS WHEREOF, the Investor and the Seller have caused their respective signature page to this Securities Purchase Agreement to be duly executed as of the date first written above.


		SELLER: THE RUSSELL BERRIE FOUNDATION, A NEW JERSEY NONPROFIT CORPORATION
		By:

		/s/ MYRON ROSNER, Secretary



		INVESTOR:

		D. E. Shaw Laminar Portfolios, L.L.C.

		By:		/s/ JULIUS GAUDIO

				Name: Julius Gaudio
				Title: Authorized Signatory

SCHEDULE OF INVESTORS


(1)	(2)	(3)		(4)		(5)

	Address and	Number of Acquired				Legal Representative’s
Investor	Facsimile Number	Shares		Purchase Price		Address and Facsimile Number


D. E. Shaw Laminar Portfolios, L.L.C.	c/o D. E. Shaw & Co., L.P. 120 West 45th Street, 39th Floor New York, New York 10036 Telephone: (212) 478-0628 Facsimile: (212) 845-1628		4,399,733	$	49,716,982.90	McCarter& English, LLP Four Gateway Center 100 Mulberry Street Newark, New Jersey 07102-4056 Attn: David F. Broderick, Esq. 973-639-2031 (direct tel.) 973-297-3815 (direct fax) dbroderick@mccarter.com

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