-----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, RdVxlSr7qP9YtDNBOOteW1ZF9s3F/Nc9+WVDMJ4Jtr0W/n+4eKUUzj6nx8cPksGe ieDOmd0GdB2633oJ/KKWBQ== 0000950137-03-004763.txt : 20030915 0000950137-03-004763.hdr.sgml : 20030915 20030915132439 ACCESSION NUMBER: 0000950137-03-004763 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20030915 EFFECTIVENESS DATE: 20030915 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ENESCO GROUP INC CENTRAL INDEX KEY: 0000093542 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MISCELLANEOUS NONDURABLE GOODS [5190] IRS NUMBER: 041864170 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-108798 FILM NUMBER: 03895270 BUSINESS ADDRESS: STREET 1: 225 WINDSOR DRIVE CITY: ITASCA STATE: IL ZIP: 60143 BUSINESS PHONE: 6308755300 FORMER COMPANY: FORMER CONFORMED NAME: STANHOME INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: STANLEY HOME PRODUCTS INC DATE OF NAME CHANGE: 19820513 S-8 1 c79572sv8.txt REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on September 15, 2003 Registration No. __________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----- ENESCO GROUP, INC. (Exact name of registrant as specified in its charter) ILLINOIS 04-1864170 (State or other jurisdiction of incorporation (I.R.S. Employer or organization) Identification No.) ENESCO GROUP, INC. 225 WINDSOR DRIVE ITASCA, ILLINOIS 60143 (Address of Principal Executive Offices) ENESCO GROUP, INC. RETIREMENT PROFIT SHARING PLAN FOR UNION EMPLOYEES (Full Title of Plan) M. FRANCES DURDEN GENERAL COUNSEL 225 WINDSOR DRIVE ITASCA, ILLINOIS 60143 (630) 875-5300 (Name, address, including zip code, and telephone number, including area code, of agent for service)
- ------------------------------------------------------------------------------------------------------------ CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------ Title of Securities To Amount to be Proposed Maximum Proposed Maximum Amount of Registration be Registered Registered Offering Price Aggregate Offering Fee(2) Per Share(2) Price(2) - ------------------------------------------------------------------------------------------------------------ Common Stock, Par 25,000 $8.39 $209,750.00 $16.97 Value, $0.125 Per Share (1) - ------------------------------------------------------------------------------------------------------------
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the plan to which this registration statement relates. (2) Estimated solely for the purposes of calculating the registration fee. Such estimate has been computed in accordance with Rule 457(h) based on the average of the high and low quotation for Common Shares on the New York Stock Exchange on September 10, 2003. PART I PLAN INFORMATION This Registration Statement on Form S-8 relates to: (a) 25,000 shares of Common Stock, which may be issued pursuant to the Enesco Group, Inc. Retirement Profit Sharing Plan for Union Employees (the "Plan"); and (b) an indeterminate amount of interests to be offered or sold pursuant to the Plan. Documents describing the Plan, such offerings and such shares and interests have been or will be given to participants in the Plan, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "SEC") under the Securities Act. Such documents are not required to be filed with the SEC, but constitute (along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933. References to the "Company" shall mean Enesco Group, Inc., an Illinois corporation. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents By Reference. We file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC's public reference rooms in Washington, D.C., New York, NY and Chicago, IL. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC filings are also available to the public from the SEC's web site at http://www.sec.gov. Reports, proxy and information statements and other information concerning us can also be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, NY 10005. We also maintain a web site at http://www.enesco.com. Our SEC filings may be viewed on our web site under the "Investor Relations" section. The SEC allows us to "incorporate by reference" information into this Registration Statement, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this Registration Statement, and later information that we file with the SEC will automatically update this Registration Statement. We incorporate by reference the following documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, prior to the termination of the offering: (a) The description of the Company's Common Stock included in its: (i) Registration Statement on Form 10, dated May 28, 1965, as amended on Form 8 Amendment No. 1, dated December 9, 1965, and Form 8 Amendment No. 2, dated September 5, 1986; (ii) Registration Statements on Form 8-A, dated September 8, 1986 and October 30, 1987, both as amended on Form 8 Amendment No. 1, dated May 6, 1988; (iii) Registration Statements on Form 8-A, dated September 9, 1998; and (iv) any other registration statement relating to the Company's Common Stock under Section 12 of the Exchange Act, including any amendments or reports filed for the purpose of updating the description of such class of securities; (b) The Company's Quarterly Report on Form 10-Q, filed with the SEC on August 13, 2003 for the quarter ending June 30, 2003. (c) The Company's Quarterly Report on Form 10-Q, filed with the SEC on May 15, 2003 for the quarter ending March 31, 2003; (d) The Company's Annual Report on Form 10-K, filed with the SEC on March 27, 2003 for the fiscal year ending December 31, 2002; (e) The description of the Company's Rights contained in its: (i) Registration Statements on Form 8-A, dated September 9, 1998; and (ii) any other registration statement relating to the Company's Rights under Section 12 of the Exchange Act, including any amendments or reports filed for the purpose of updating the description of such Rights. On June 15, 2002, Arthur Andersen LLP ("Arthur Andersen"), the Company's independent public accounting firm for the year ended December 31, 2001, was convicted on federal obstruction of justice charges arising from the U.S. Government's investigation of Enron Corp. On June 4, 2002, the Company engaged KPMG LLP as its independent public accountants for the fiscal year 2002. The Company has not been able to obtain, after reasonable efforts, the written consent of Arthur Andersen to its naming in this Registration Statement as having certified the Company's consolidated financial statements for the year ended December 31, 2001, as required by Section 7 of the Securities Act. Accordingly, Plan participants will not be able to assert claims against Arthur Andersen under Section 11 of the Securities Act for any untrue statement of a material fact contained in the Company's consolidated financial statements for the year ended December 31, 2001 or any omissions to state a material fact required to be stated therein. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel M. Frances Durden, General Counsel for the Company, who has rendered an opinion on the legality of the securities being registered, is paid a salary by the Company, is a participant in various employee benefit plans of the Company and owns Common Stock of the Company. Item 6. Indemnification of Directors and Officers. Article 7E of the Company's Articles of Incorporation provides that directors of the Company shall not be personally liable to the Company or its shareholders for monetary damages for any breach of fiduciary duty as a Director notwithstanding any provision of law imposing such liability; provided, however, that the foregoing provision does not eliminate or limit any liability of a Director: (i) for any breach of the Director's duty of loyalty to the Company or its shareholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 8.65 of the Illinois Business Corporation Act of 1983, as amended (the "IBCA"); or (iv) for any transaction from which the director derived an improper personal benefit. Section 8.75 of the IBCA provides that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or who is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Under certain circumstances, Section 8.75 permits a corporation to indemnify its directors, officers, employees and agents against expenses incurred in connection with the defense or settlement of shareholder derivative actions. Section 8.75 also provides that the corporation may purchase insurance on behalf of any such director, officer, employee or agent. Substantially similar provisions that require such indemnification are contained in Article V of the Company's By-laws, which are incorporated herein by reference. Subject to the limitations subscribed below, Section 3.7 of the Enesco Group, Inc. Retirement Trust (which funds and forms a part of the Plan) provides for the indemnification of any director, officer and specified key employees of the Company against all expenses, as defined therein, actually or reasonably incurred by any of them in connection with any claim asserted against him or her, or in connection with any action, suit or proceeding, civil or criminal, in which any of them may be involved as a party, by reason of his or her having served as a member of the Administrative Committee, the Review Committee or in another Plan Administration capacity ("Plan Capacity"). Indemnification under the Retirement Trust is subject to the condition that the person in question acted in such Plan Capacity in good faith in the reasonable belief that his or her actions were in the best interests of the Plan. The Company has director and officer liability insurance and ERISA fiduciary insurance covering certain expenditures that might arise in connection with the foregoing indemnifications. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits The exhibits listed below are filed herewith or are incorporated herein by reference to other filings. The Plan is intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended. The Plan is maintained through adoption of a prototype plan document sponsored by Vanguard Fiduciary Trust Company (the "Prototype Sponsor"). The Company has been assured by the Prototype Sponsor that the form of document which has been adopted by the Company to implement the Plan has been (and any future amendments thereto) will be submitted by the Prototype Sponsor to the Internal Revenue Service in a timely manner and all changes required by the IRS in order to maintain the qualified status of the plan will be made. EXHIBIT NO. DESCRIPTION OF EXHIBIT 4.1 Vanguard Returns Chart 4.2 Articles of Incorporation of the Company 4.3 By-laws of the Company 5.1 & 23.1 Opinion & consent of M. Frances Durden 23.2 Consent of KPMG LLP 23.3 The Company was unable to obtain the consent of Arthur Andersen LLP. See information above in Part II, Item 3 under the heading "Incorporation of Documents by Reference". 24.1 Power of Attorney Item 9. Undertakings The Company hereby undertakes: (a) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10 (a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (b) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (d) That, for the purpose of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the provisions described in Item 6 of this Registration Statement, or otherwise, the Company has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the administrator of the Enesco Group, Inc. Retirement Profit Sharing Plan for Union Employees certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Village of Itasca, State of Illinois, on September 15, 2003. Enesco Group, Inc. /s/ Daniel DalleMolle ----------------------------- By: Daniel DalleMolle Chief Executive Officer & President POWER OF ATTORNEY KNOW BY ALL PERSONS BY THESE PRESENTS: That the undersigned officers and directors of Enesco Group, Inc., an Illinois corporation, do hereby constitute and appoint each of Daniel DalleMolle, Thomas F. Bradley and M. Frances Durden, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act and any rules or regulations or requirements of the SEC in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts. IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated. Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. September 15, 2003 /s/ Anne-Lee Verville ----------------------------- By Anne-Lee Verville Chairman of the Board September 15, 2003 /s/ Daniel DalleMolle ----------------------------- By Daniel DalleMolle Chief Executive Officer September 15, 2003 /s/ Eugene Freedman ----------------------------- By Eugene Freedman Director September 15, 2003 /s/ John F. Cauley ----------------------------- By John F. Cauley Director September 15, 2003 /s/ George R. Ditomassi ----------------------------- By George R. Ditomassi Director September 15, 2003 /s/ Judith R. Haberkorn ----------------------------- By Judith R. Haberkorn Director September 15, 2003 /s/ Donald L. Krause ----------------------------- By Donald L. Krause Director September 15, 2003 /s/ Donna Brooks Lucas ----------------------------- By Donna Brooks Lucas Director September 15, 2003 /s/ Thane A. Pressman ----------------------------- By Thane A. Pressman Director EXHIBIT INDEX Exhibit No. Description of Exhibit 4.1 Vanguard Returns Chart 4.2 Articles of Incorporation of the Company 4.3 By-laws of the Company 5.1 & 23.1 Opinion & consent of M. Frances Durden 23.2 Consent of KPMG LLP 24.1 Power of Attorney (included on the signature page hereof) EX-4.1 3 c79572exv4w1.txt VANGUARD RETURNS CHART . . . Exhibit 4.1 UNION PLAN PERFORMANCE
AVERAGE ANNUAL TOTAL RETURNS AS OF YTD JULY 31, 2003 RETURNS -------------------- FUND EXPENSE AS OF 1 3 5 10 FUND NAME NUMBER RATIO AUG. 18, 2003 YEAR YEAR YEAR YEAR - --------- ------ ------- --------------- ------ ------ ------ ------ Amer Funds New Persp A* 2777 0.82% 13.53% 13.45% -7.02% 4.11% 11.03% Enesco Group, Inc.* 2408 -- 7.21% 3.78% 5.74% -- -- Extended Mkt Index Inv 98 0.26% 23.92% 21.53% -7.50% 2.09% 9.20% International Growth Inv 81 0.67% 14.31% 6.80% -11.75% -2.79% 5.39% Morgan Growth Fund Inv 26 0.48% 18.57% 16.50% -12.11% -0.19% 9.83% Prime Money Mkt Fund 30 0.33% 0.61% 1.18% 3.03% 3.96% 4.48% Total Bond Mkt Index Inv 84 0.22% 0.68% 5.19% 7.79% 6.32% 6.52% Total Stock Mkt Idx Inv 85 0.20% 16.61% 12.54% -9.29% -0.33% 9.69% U.S. Growth Fund Investor 23 0.50% 14.84% 9.03% -26.98% -11.06% 5.10% Wellington Fund Inv 21 0.36% 9.45% 7.24% 4.87% 4.75% 10.36% Windsor II Fund Inv 73 0.42% 13.87% 9.34% 1.56% 0.88% 10.59%
* YTD return as of Jul 31, 2003, and annual returns as of Jul 31, 2003. Except for funds with *, all are Vanguard funds. EX-4.2 4 c79572exv4w2.txt ARTICLES OF INCORPORATION OF THE COMPANY . . . Exhibit 4.2 - ------------------------------------------------------------------------------------------------------------------------------------ Form BCA-2.10 ARTICLES OF INCORPORATION - ------------------------------------------------------------------------------------------------------------------------------------ (Rev. Jan. 2003) This space for use by Secretary of State Jesse White SUBMIT IN DUPLICATE! Secretary of State Department of Business Services Springfield, IL 62756 http://www.cyberdriveillinois.com - ------------------------------------------------------------------------------------------------------------------------------------ Payment must be made by certi- THIS SPACE FOR US BY fied check, cashier's check, Illi- SECRETARY OF STATE nois attorney's check, Illinois Date C.P.A.'s check or money order, payable to "Secretary of State." Franchise Tax $ Filing Fee: $ Approved: - ------------------------------------------------------------------------------------------------------------------------------------ 1. CORPORATE NAME: Enesco Group Illinois, Inc. -------------------------------------------------------------------------------------------------------------- (The corporate name must contain the word "corporation", "company," "incorporated," "limited" or an abbreviation thereof.) 2. Initial Registered Agent: M. Frances Durden ----------------------------------------------------------------------------------------------------- First Name Middle Initial Last Name Initial Registered Office: 225 Windsor Drive ----------------------------------------------------------------------------------------------------- Number Street Suite # Itasca IL 60143 DuPage ----------------------------------------------------------------------------------------------------- City Zip Code County 3. Purpose of purposes for which the corporation is organized: (If not sufficient space to cover this point, add one or more sheets of this size.) See attachment. - ------------------------------------------------------------------------------------------------------------------------------------ 4. Paragraph 1: Authorized shares, Issued Shares and Consideration Received: Number of Shares Number of Shares Consideration to be Class Authorized Proposed to be Issued Received Therefor - ------------------------------------------------------------------------------------------------------------------------------------ Common $80,000,000 100 $1,000 - ------------------------------------------------------------------------------------------------------------------------------------ par value 0.125 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ TOTAL = $1,000 -------------------------- Paragraph 2: The preferences, qualifications, limitations, restrictions and special or relative rights in respect of the shares of each class are: (If not sufficient space to cover this point, add one or more sheets of this size.) None.
(over) 5. OPTIONAL: (a) Number of directors constituting the initial board of directors of the corporation: ___________________. (b) Names and addresses of the persons who are to serve as directors until the first annual meeting of the shareholders or until their successors are elected and qualify: Name Residential Address City, State, ZIP ------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ 6. OPTIONAL (a) It is estimated that the value of all property to be owned by the corporation for the following year wherever located will be: $ (b) It is estimated that the value of the property to be located within the State of Illinois during the following year will be: $ (c) It is estimated that the gross amount of business that will be transacted by the corporation during the following year will be: $ (d) It is estimated that the gross amount of business that will be transacted from place of business in the State of Illinois during the following year will be: $ - ------------------------------------------------------------------------------------------------------------------------------------ 7. OPTIONAL: OTHER PROVISIONS: Attach a separate sheet of this size for any other provision to be included in the Articles of Incorporation, e.g., authorizing preemptive rights, denying cumulative voting, regulating internal affairs, voting majority requirements, fixing a duration other than perpetual, etc. - ------------------------------------------------------------------------------------------------------------------------------------ 8. NAME(S) & ADDRESS(ES) OF INCORPORATOR(S) The undersigned incorporator(s) hereby declare(s), under penalties of perjury, that the statements made in the foregoing Articles of Incorporation are true. Dated July 25 , 2003 -------------------------------------- ---- (Month & Day) Year SIGNATURE AND NAME ADDRESS 1. 1. 225 Windsor Drive -------------------------------------------------- --------------------------------------------------------- Signature Street M. Frances Durden Itasca IL 60143 -------------------------------------------------- --------------------------------------------------------- (Type or Print Name) City/Town State ZIP Code 2. /s/ M. Frances Durden 2. -------------------------------------------------- --------------------------------------------------------- Signature Street -------------------------------------------------- --------------------------------------------------------- (Type or Print Name) City/Town State ZIP Code 3. 3. -------------------------------------------------- --------------------------------------------------------- Signature Street -------------------------------------------------- --------------------------------------------------------- (Type or Print Name) City/Town State ZIP Code (Signature must be in BLACK INK on original document. Carbon copy, photocopy or rubber stamp signatures may only be used on conformed copies.) NOTE: If a corporation acts as incorporator, the name of the corporation and the state of incorporation shall be shown and the execution shall be by its president or vice president and verified by him, and attested by its secretary or assistant secretary. - ------------------------------------------------------------------------------------------------------------------------------------ FEE SCHEDULE o The initial franchise tax is assessed at the rate of 15/100 of 1 percent ($1.50 per $1,000) on the paid-in capital represented in this state, with a minimum of $25. o The filing fee is $75. o The MINIMUM TOTAL DUE (franchise tax + filing fee) is $100. (Applies when the Consideration to be Received as set forth in Item 4 does not exceed $16,667) o The Department of Business Services in Springfield will provide assistance in calculating the total fees if necessary. Illinois Secretary of State Springfield, IL 62756 Department of Business Services Telephone (217) 782-9522 or 782-9523 C-162.20
Page 1 of 3 ATTACHMENT TO FORM BCA-2.10 ARTICLES OF INCORPORATION OF ENESCO GROUP ILLINOIS, INC. ARTICLE 3 PURPOSE OR PURPOSES FOR WHICH THE CORPORATION IS ORGANIZED: The purpose of the corporation is to engage in the following business activity(ies): To manufacture, process, assemble, warehouse, buy, sell, distribute and otherwise engage in and carry on the business of marketing giftware and collectible products and other items, materials, articles, goods and merchandise and otherwise dealing in real, personal and intellectual or industrial property of all kinds and descriptions; to exercise all of the powers conferred upon business corporations by, and from time to time permitted to be exercised by business corporations under, the laws of the State of Illinois; and to engage in and carry on any other lawful business or transaction which may now or hereafter be permitted under the laws of the State of Illinois to be conducted, whether in that State or elsewhere, by a business corporation organized under the Illinois Business Corporation Act. ARTICLE 7 OPTIONAL: OTHER PROVISIONS ARTICLE 7A A. Except as otherwise provided in the Articles of Incorporation or as otherwise required by law, any merger or consolidation, mandatory share exchange, sale, lease or exchange of all or substantially all of the Corporation's assets, including its goodwill, or amendment to these Articles of Incorporation, which would otherwise require a supermajority vote of shareholders of this Corporation pursuant to the Illinois Business Corporation Act, shall instead require the affirmative vote of a majority of the shares of each class of stock of this Corporation outstanding and entitled to vote on the question. B. Any action required or permitted to be taken by the shareholders or any class of shareholders shall be taken by such shareholders only at a duly convened meeting, and may not be taken by written consent in lieu of a meeting. ARTICLE 7B A. The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors consisting of such number of directors as shall be established from time to time in accordance with the By-laws. The directors shall be divided into three classes, designated Class I, Class II and Class III, and each class of directors shall be elected for a term of office to expire at the third succeeding annual meeting after their election and until their respective successors shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, disqualification or removal from office. The initial term of office of the Class III directors shall expire at the 2004 annual meeting of shareholders, the initial term of Page 2 of 3 office of the Class I directors shall expire at the 2005 annual meeting of shareholders, and the initial term of office of the Class II directors shall expire at the 2006 annual meeting of shareholders. Each class shall consist, as nearly as may be possible, of one third of the total number of directors constituting the entire Board of Directors. If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of directors shorten the term of any incumbent director. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his or her predecessor. B. Any vacancy on the Board of Directors that results from an increase in the number of directors may only be filled by a majority of the Board of Directors then in office, provided that a quorum is present, and any other vacancy occurring in the Board of Directors may only be filled by a majority of the directors then in office, even if less than a quorum, or by a sole remaining director. C. Nominations for the election of directors at an annual meeting may be made by the Board of Directors or a committee appointed by the Board of Directors or by any shareholder entitled to vote generally in the election of directors. However, any shareholder may nominate one or more persons for election as directors at an annual meeting only if written notice of such shareholders intent to make such nomination or nominations has been given, either by personal delivery or by United States mail, postage prepaid, to the Secretary not later than forty-five days prior to the anniversary of the date of the immediately preceding annual meeting, or such other earlier or later date as may be required by any law or regulation applicable to the Corporation. Each such notice shall set forth: (a) the name and address of the shareholder who intends to make the nomination and of the person or persons to be nominated; (b) a representation that the shareholder is a holder of record of this Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (c) a description of all arrangements or understandings between the shareholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the shareholder; (d) such other information regarding each nominee proposed by such shareholder as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission; and (e) the consent of each nominee to serve as a director if so elected. The presiding officer of the meeting may refuse to acknowledge the nomination of any person not made in compliance with the foregoing procedure. D. A director may not be removed from office without cause, and may be removed for cause only after a reasonable notice and opportunity to be heard before the body proposing to remove him or her. E. No holder of any class of shares of the Corporation shall be entitled to cumulate his or her votes in any election of directors. Page 3 of 3 F. Notwithstanding any other provision of these Articles of Incorporation, the affirmative vote of holders of 80% of the shares entitled to vote at an election of directors shall be required to amend, alter, change or repeal, or to adopt any provision as part of these Articles of Incorporation inconsistent with the purpose and intent of, this Article 7B. ARTICLE 7C Except as otherwise provided in these Articles of Incorporation or as required by law, the Corporation may authorize, at a meeting of shareholders duly called for the purpose, by a vote of a majority of each class of stock outstanding and entitled to vote thereon, any amendment of these Articles of Incorporation. ARTICLE 7D The Board of Directors shall have the power to make, amend or repeal the By-laws of the Corporation in whole or in part. ARTICLE 7E Directors of the Corporation shall not be personally liable to the Corporation or its shareholders for monetary damages for any breach of fiduciary duty as a Director notwithstanding any provision of law imposing such liability; provided, however, that the foregoing provision shall not be deemed to eliminate or limit any liability of a Director (i) for any breach of the Director's duty of loyalty to the Corporation or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 8.65 of the Illinois Business Corporation Act of 1983, as amended, or (iv) for any transaction from which the Director derived an improper personal benefit. ARTICLE 7F A. Meetings of the shareholders of the Corporation shall be held anywhere within the United States, as determined by the Board of Directors of the Corporation, as permitted by the provisions of the Illinois Business Corporation Act. B. The effective date of the Articles of Incorporation of the corporation shall be the date approved and filed by the Illinois Secretary of State. EX-4.3 5 c79572exv4w3.txt BY-LAWS OF THE COMPANY EXHIBIT 4.3 BY LAWS OF ENESCO GROUP, INC. BY-LAWS OF ENESCO GROUP, INC. TABLE OF CONTENTS
ARTICLE PAGE ARTICLE I OFFICES.................................................................................................1 SEC. 1. Principal Office...................................................................................1 SEC. 2. Other Offices......................................................................................1 ARTICLE II MEETINGS OF SHAREHOLDERS...............................................................................1 SEC. 1. Place of Meetings..................................................................................1 SEC. 2. Quorum and Manner of Acting........................................................................1 SEC. 3. Annual Meetings....................................................................................1 SEC. 4. Special Meetings...................................................................................1 SEC. 5. Notices............................................................................................1 SEC. 6. Adjournments.......................................................................................2 ARTICLE III DIRECTORS.............................................................................................2 SEC. 1. Number; Qualifications.............................................................................2 SEC. 2. Annual Meetings....................................................................................2 SEC. 3. Regular Meetings...................................................................................2 SEC. 4. Special Meetings...................................................................................2 SEC. 5. Waiver of Notice...................................................................................2 SEC. 6. Quorum.............................................................................................2 SEC. 7. Action without Meeting.............................................................................3 SEC. 8. Powers.............................................................................................3 SEC. 9. Execution of Corporation Documents and Instruments.................................................3 SEC. 10. Committees of the Board of Directors............................................................3 SEC. 11. Remuneration of Outside Directors...............................................................3 ARTICLE IV OFFICERS...............................................................................................3 SEC. 1. Election of Officers...............................................................................3 SEC. 2. Terms of Office....................................................................................3 SEC. 3. Compensation of Officers, Employees and Agents.....................................................4 SEC. 4. Vacancies..........................................................................................4 CHAIRMAN OF THE BOARD.......................................................................................4 SEC. 5. Chairman...........................................................................................4 SEC. 6. Office of the Chairman.............................................................................4 PRESIDENT...................................................................................................4 SEC. 7. President..........................................................................................4 SEC. 8. Powers of the President............................................................................4 VICE PRESIDENTS.............................................................................................5 SEC. 9. Powers of the Vice Presidents......................................................................5 TREASURER...................................................................................................5 SEC. 10. Duties of the Treasurer.........................................................................5 SEC. 11. Execution of Documents..........................................................................5 SEC. 12. Stock Transfer Records..........................................................................5 SEC. 13. Additional Powers...............................................................................5 ASSISTANT TREASURERS........................................................................................5
SEC. 14. Assistant Treasurers............................................................................5 SECRETARY...................................................................................................5 SEC. 15. Secretary.......................................................................................5 ASSISTANT SECRETARIES.......................................................................................6 SEC. 16. Assistant Secretary.............................................................................6 BONDS.......................................................................................................6 SEC. 17. Bonds...........................................................................................6 ARTICLE V INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS............................................6 SEC. 1. Indemnification in General.........................................................................6 SEC. 2. Indemnification of Litigant........................................................................6 SEC. 3. Payment of Expenses................................................................................7 SEC. 4. Determination of Conduct...........................................................................7 SEC. 5. Advance of expenses................................................................................7 SEC. 6. Non-exclusivity....................................................................................7 SEC. 7. Right to acquire insurance.........................................................................8 SEC. 8. Notice to shareholders.............................................................................8 SEC. 9. References to the "Corporation"....................................................................8 SEC. 10. Miscellaneous Definitions.......................................................................8 ARTICLE VI STOCK..................................................................................................9 SEC. 1. Holders to be Recognized...........................................................................9 SEC. 2. Form of Stock Certificates.........................................................................9 SEC. 3. Replacement of Certificates Lost, Etc..............................................................9 SEC. 4. Fixing Date for Determination of Shareholders of Record............................................9 SEC. 5. Restrictions on Transfer...........................................................................9 ARTICLE VII SEAL AND FISCAL YEAR..................................................................................9 SEC. 1. Seal...............................................................................................9 SEC. 2. Fiscal Year........................................................................................9 ARTICLE VIII AMENDMENT OF BY-LAWS................................................................................10 SEC. 1. Amendment by Shareholders.........................................................................10 SEC. 2. Amendment by Board of Directors...................................................................10
ARTICLE I OFFICES SEC. 1. Principal Office. The location of the principal office of the Corporation in the State of Illinois shall be in the City of Itasca, unless such location shall at any tine be changed as permitted by law. SEC. 2. Other Offices. The Corporation may also have offices in such other places within and without the State of Illinois as the business of the Corporation may require. ARTICLE II MEETINGS OF SHAREHOLDERS SEC. 1. Place of Meetings. Meetings of the shareholders of the Corporation shall be held anywhere within the United States, as determined by the Board of Directors of the Corporation, as permitted by the provisions of the Illinois Business Corporation Act. SEC. 2. Quorum and Manner of Acting. A majority of the votes of the shares entitled to vote on the matters to be presented, which is represented by the holders thereof, either in person or by proxy, shall be a quorum at any meeting of shareholders. If a quorum is present, the affirmative vote of the majority of the votes of shares represented at the meeting and entitled to vote on a matter shall be the act of the shareholders, unless a greater number of votes or voting by classes is required by the Illinois Business Corporation Act of 1983, as amended, or the Articles of Incorporation. SEC. 3. Annual Meetings. The annual meeting of the shareholders shall be held on such date and at such time as the Board of Directors shall establish by resolution. In the absence of resolution of the Board, the annual meeting shall be held on the third Thursday of May in each year at 10:00 A.M.. At each annual meeting the shareholders entitled to vote thereat on the matter shall elect the class of Directors whose term of office is expiring, in accordance with the provisions of Article 7B of the Articles of Incorporation of the Corporation, as amended. At each annual meeting the shareholders entitled to vote thereat on the matter shall have placed before them for ratification the name of the Auditor appointed by the Board of Directors in accordance with law. SEC. 4. Special Meetings. Special meetings of shareholders may be called by the President, or by the Board of Directors, or by the holders of not less than 20% of the outstanding shares entitled to vote on the matter for which the meeting is to be called. SEC. 5. Notices. Written notice of any meeting of shareholders, stating the place, day and hour of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than 10 nor more than 60 days before the date of the meeting, or in the case of a merger, consolidation, share exchange, dissolution or sale, lease or exchange of assets, not less than 20 nor more than 60 days before the date of the meeting, either 1 personally or by mail, by or at the direction of the President, the Secretary or the officer or persons calling the meeting to each shareholder of record entitled to vote on any of the matters to be presented at his or her address as the same appears on the records of the Corporation. SEC. 6. Adjournments. Any meeting of the shareholders may be adjourned to any other time and place by the shareholders present or represented by proxy at the meeting and entitled to vote on the matters to be presented, although less than a quorum, and it shall not be necessary to notify any shareholder of any such adjournment. Any business which could have been transacted at any meeting of shareholders as originally called may be transacted at any such adjournment thereof. ARTICLE III DIRECTORS SEC. 1. Number; Qualifications. The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors consisting of not less than nine nor more than fourteen, the exact number of directors to be determined from time to time by resolution adopted by the affirmative role of a majority of the entire Board of Directors. Each Director shall be a voting shareholder or shall become such prior to acting as a director. SEC. 2. Annual Meetings. Following each annual meeting of shareholders and at the place thereof, if a quorum of the Board of Directors is present thereat, the annual meeting of the Board of Directors shall proceed thereafter without notice; but if a quorum of the Board is not present thereat, or, if present, does not so proceed to hold such meeting, the annual meeting of such Board shall be called in the manner hereinafter provided with respect to the call of a special meeting of the Board. SEC. 3. Regular Meetings. Regular meetings of the Board of Directors may be held at such times and places within or without the State of Illinois as shall from time to time be fixed by the Board, and no notice need be given of regular meetings held at times and places so fixed. SEC. 4. Special Meetings. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board or the President, and the Secretary or an Assistant Secretary shall give notice of any special meeting so called to all Directors stating the time and place within or without the State of Illinois, and such notice shall be sufficient if given either (i) by mailing the same postage prepaid forty-eight hours before the date of the meeting addressed to each Director at his usual place of business or residence, or (ii) by delivery thereof in hand or by telegram dispatched prepaid not less than twenty-four hours before the date of the meeting, or (iii) orally or by telephone not less than twenty four hours before the date of the meeting. SEC. 5. Waiver of Notice. Any requirement of notice of any meeting of the Board of Directors shall be deemed satisfied as to any Director who waives the same or whose attendance at such meeting constitutes a waiver under the law. SEC. 6. Quorum. A majority of the Board of Directors in office shall constitute a quorum for the transaction of business, and a meeting of the Board, whether a quorum be present or not, 2 may be adjourned by those present without the necessity of notifying any Director of any such adjournment. Any business which could legally be transacted at any meeting of the Board of Directors may be transacted at any adjournment thereof without any new notification. SEC. 7. Action without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all Directors consent in writing to such action. Such written consent, setting forth the action taken, shall be filed by the Secretary with the minutes of the Board of Directors. SEC. 8. Powers. The Board of Directors shall manage the business of the Corporation and shall have all the powers of the Corporation, except such as by law, the Articles of Incorporation or by the By-Laws of the Corporation are conferred upon or reserved to the shareholders. SEC. 9. Execution of Corporation Documents and Instruments. The Board of Directors shall designate the persons, in addition to those specifically authorized elsewhere in these By-Laws, who shall be empowered on behalf of the Corporation to sign checks, contracts, bids, deeds, releases, securities devices, notes and other documents and instruments of the Corporation, as well as the terms and conditions, if any, of such signing. SEC. 10. Committees of the Board of Directors. The Board of Directors may establish such committees, including an Executive Committee, consisting of two or more members elected by it from among its number as it deems advisable in the conduct of the business of the Corporation and may delegate such functions and duties to such committees from time to time as may be permitted by law. SEC. 11. Remuneration of Outside Directors. Any Director who is entitled to compensation from the Corporation as an officer or employee thereof shall not receive any additional compensation for his services as a director. The Board of Directors may provide for remuneration of all other Directors in such amounts and in such manner as the Board may from time to time deem advisable. ARTICLE IV OFFICERS SEC. 1. Election of Officers. The Officers of the Corporation shall be elected by the Directors and shall include a President, a Treasurer, and a Secretary, and, when deemed desirable by the Board of Directors, a Chairman of the Board, one or more Vice Presidents, one or more Assistant Treasurers, one or more Assistant Secretaries and such other officers as the Board of Directors may, from time to time, deem necessary or advisable for the management of the affairs of the Corporation. The President, Treasurer and Secretary shall be elected at the Annual Meeting of Directors. All other officers may be elected at such annual meeting or at any regular or special meeting of the Board of Directors. SEC. 2. Terms of Office. The President, the Treasurer and the Secretary shall (unless sooner removed in accordance with law) hold office until the next annual meeting of the Board of Directors and until their respective successors are elected. All other officers shall (unless 3 sooner removed in accordance with law) hold their respective offices until the next annual meeting and the election of the first mentioned officers thereat. SEC. 3. Compensation of Officers, Employees and Agents. The officers, employees and agents of the Corporation shall receive such compensation and upon such terms as the Board of Directors may from time to time determine. The determination of such compensation may be delegated by the Board of Directors to (i) a Compensation Committee composed of members of the Board who are elected to that Committee by it or appointed under is authorization except that the determination of the compensation of the members of the Compensation Committee cannot be delegated to that Committee, and (ii) to such other individuals or committees to the extent and in the manner permitted by the law. SEC. 4. Vacancies. If any corporate office specified in this Article becomes vacant for any reason, including resignation, the Board of Directors may elect a successor who shall hold office for the unexpired term unless sooner removed in accordance with law. CHAIRMAN OF THE BOARD SEC. 5. Chairman. The Chairman of the Board shall preside at all meetings of the shareholders and of the Board of Directors. The Chairman of the Board shall have the power, on behalf of the Corporation, to sign contracts, deeds and releases and, with the Treasurer or Assistant Treasurer, to sign or endorse security devices, notes, and, when authorized by the Board of Directors, to sign or endorse such other documents and instruments as the Board of Directors may specify. The Chairman of the Board shall also have such additional powers and duties as the Board of Directors may from time to time assign him. SEC. 6. Office of the Chairman In the event there is a vacancy in the office(s) of the Chief Executive Officer and President, such duties shall be carried out by the office of the Chairman, which shall be comprised of the Chairman of the Board of Directors and such other member(s) from the Board of Directors and executive officer(s) as determined by the Board of Directors in its sole discretion, until such time as a new Chief Executive Officer and President is elected. PRESIDENT SEC. 7. President. In the absence or disability of the Chairman of the Board or at his request, or if his office be vacant, the President shall preside at all meetings of the shareholders and of the Board of Directors. SEC. 8. Powers of the President. The president shall have the power on behalf of the Corporation (i) to sign contracts, deeds and releases and (ii) with the Treasurer or Assistant Treasurer, to sign or endorse certificates of stock, security devices, notes, and (iii) when authorized by the Board of Directors, to sign or endorse such other documents and instruments as the Board of Directors may specify. The President shall have also such additional powers and duties as the Board of Directors may from time to time assign to him. 4 VICE PRESIDENTS SEC.9. Powers of the Vice Presidents. Each of the Vice-Presidents shall bear such title and shall have such powers and duties as may be assigned to him from time to time by the Board of Directors. TREASURER SEC. 10. Duties of the Treasurer. The Treasurer shall have the custody of the money, funds and securities of the Corporation and shall have charge of its books and keeping of its accounts. He shall make financial and accounting reports to the Board of Directors at least quarterly and more often when requested by it, and shall make a report at the annual meeting of shareholders. He shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all monies and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated from time to time by the Board of Directors. SEC. 11. Execution of Documents. The Treasurer shall, with the President or a duly authorized Vice President, sign all certificates of shares, and, with the Chairman of the Board or the President or a duly authorized Vice President, sign or endorse security devices and notes and, when authorized by the Board of Directors, sign or endorse such other documents and instruments as the Board may specify. SEC. 12. Stock Transfer Records. The Treasurer shall also keep books for the recording of shares and transfers thereof and the names and addresses of shareholders and shall be transfer agent of the Corporation for the transfer of all certificates of shares; provided that, the Board of Directors may, with respect to the transfer of shares of any class of the capital stock of the Corporation, appoint any other person or corporation to act as transfer agent, and, when the Board deems it desirable, any person or corporation, to act as registrar thereof. SEC. 13. Additional Powers. The Treasurer also shall have such additional powers anal duties as may be assigned to him from time to time by the Board of Directors. ASSISTANT TREASURERS SEC. 14. Assistant Treasurers. In the absence or disability of the Treasurer, or if his office be vacant, the Assistant Treasurers, in the order of the seniority of their election, shall have the powers and duties appertaining to the office of Treasurer set forth in Sections 10 and 12 above and when duly authorized by the Board of Directors shall perform all or any part of the duties set forth in Sections 11 and 13 above. In addition to the foregoing, each of the Assistant Treasurers shall have such other powers and duties as may be assigned to him from time to time by the Board of Directors. SECRETARY SEC. 15. Secretary. The Secretary shall attend all meetings of the Board of Directors and the Executive Committee and shall record all votes and minutes of all proceedings thereat in 5 books to be kept for that purpose. When required by law or these By Laws, proper notice of meetings of the Board of Directors and the shareholders shall be given by him. In addition to the foregoing, the Secretary shall have such other powers and duties as may be assigned to him from time to time by the Board of Directors. ASSISTANT SECRETARIES SEC. 16. Assistant Secretary. In the absence or disability of the Secretary or at his request, or if his office be vacant, the Assistant Secretaries, in the order of the seniority of their elections, shall perform the duties herein assigned to the Secretary. In addition to the foregoing, each Assistant Secretary shall have such other powers and duties as may be assigned to him from time to time by the Board of Directors. BONDS SEC. 17. Bonds. Any officer of the Corporation may be required to give a bond for the faithful performance of his duties in such form and with such sureties as the Board of Directors may direct. ARTICLE V INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS SEC. 1. Indemnification in General. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation, or who is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment or settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, or with respect to any criminal action or proceeding, that the person had reasonable cause to believe that his or her conduct was unlawful. SEC. 2. Indemnification of Litigant. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of 6 another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, provided that no indemnification shall be made in respect of any claim, issue or matter as to which such persons shall have been adjudged to be liable for negligence or misconduct in the performance of his or her duty to the Corporation, unless, and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper. SEC. 3. Payment of Expenses. To the extent that a director, officer, employee, or agent of the Corporation has been successful, on the merits or otherwise, in the defense of any action, suit or proceeding referred to in Sections 1 and 2 of this Article V, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him or her in connection therewith, if such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation. SEC. 4. Determination of Conduct. Any indemnification under Sections 1 and 2 of this Article V (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case, upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Sections 1 or 2 of this Article V. Such determination shall be made with respect to a person who is a director or officer of the Corporation at the time of the determination by the board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding; or, if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or, by the shareholders. SEC. 5. Advance of expenses. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding, as authorized by the board of directors in the specific case, upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation as authorized in this Article V. Such expenses (including attorneys fees) incurred by former directors and officers or other employees and agents may be so paid on such terms and conditions, if any, as the Corporation deems appropriate. SEC. 6. Non-exclusivity. The indemnification provided by this Article V shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any contract, agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. 7 SEC. 7. Right to acquire insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation, as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of this Article. SEC. 8. Notice to shareholders. If the Corporation has paid indemnity or has advanced expenses to a director, officer, employee or agent, the Corporation shall report the indemnification or advance in writing to the shareholders with or before the notice of the next shareholders meeting. SEC. 9. References to the "Corporation". For purposes of this Article, references to "the Corporation" shall include, in addition to the surviving corporation, any merging corporation (including any corporation having merged with a merging corporation) absorbed in a merger which, if its separate existence had continued, would have had the power and authority to indemnify its directors, officers, and employees or agents, so that any person who was a director, officer, employee or agent of such merging corporation, or was serving at the request of such merging corporation as a director, officer, employee or agent of any other corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article V with respect to the surviving corporation as such person would have with respect to such merging corporation if its separate existence had continued. SEC. 10. Miscellaneous Definitions. For purposes of this Article V, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries. A person who acted in good faith and in a manner he or she reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interest of the Corporation" as referred to this Article V. 8 ARTICLE VI STOCK SEC. 1. Holders to be Recognized. The Corporation shall be entitled to treat the record holder of any share or shares of stock as the holder in fact thereof and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person except as may be otherwise expressly provided by law. SEC. 2. Form of Stock Certificates. All certificates of stock shall be in such form and contain such information as shall be required by law and be signed, either manually or by facsimile, as hereinbefore provided. SEC. 3. Replacement of Certificates Lost, Etc. In case of the alleged loss, destruction, mutilation, or wrongful taking of a certificate of stock, a new certificate may be issued in place thereof, upon such terms and conditions as the Board of Directors may prescribe. SEC. 4. Fixing Date for Determination of Shareholders of Record. The Board of Directors may fix in advance a time, which shall be not more than 60 days before the date of any meeting of shareholders or the date for the payment of any dividend or the making of any distribution to shareholders or the last day on which the consent or dissent of shareholders may he effectively expressed for any purpose, nor less than 10 days, in the case of meeting of shareholders or, in the case of a merger, consolidation, share exchange, dissolution or sale, lease or exchange of shares, not less than 20 days, as the record date for determining the shareholders having the right to notice of and to vote at such meeting and any adjournment thereof or the right to receive such dividend or distribution or the right to give such consent or dissent, and in such case only shareholders of record on such record date shall have such right, notwithstanding any transfer of stock on the books of the Corporation after the record date; or without fixing such record date the Board of Directors may for any of such purposes close the transfer books for all or any part of such period. SEC. 5. Restrictions on Transfer. The Board of Directors may impose restrictions on transfer of securities of the Corporation pursuant to the Rights Agreement dated as of September 7, 1988 by and between the Corporation and The Connecticut Bank and Trust Company, N.A. (East Hartford, Connecticut), as and to the extent required by such Rights Agreement, as amended from time to time. ARTICLE VII SEAL AND FISCAL YEAR SEC. 1. Seal. The seal of the Corporation shall have inscribed thereon the name of the Corporation. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed to any document. SEC. 2. Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January of each year and end on the thirty-first day of December. 9 ARTICLE VIII AMENDMENT OF BY-LAWS SEC. 1. Amendment by Shareholders. Any of these By-Laws may be added to, altered, amended or repealed by the shareholders of the Corporation entitled to vote on the matter at any annual or special meeting of shareholders. The nature or substance of the proposed addition, alteration, amendment or repeal shall be stated in the notice of the meeting. SEC. 2. Amendment by Board of Directors. The Board of Directors shall also have the power to make, amend or repeal the By-Laws of the Corporation in whole or in part subject to amendment or repeal by shareholders as provided by law. 10 EX-5.1 6 c79572exv5w1.txt OPINION & CONSENT OF M. FRANCES DURDEN Exhibit 5.1 and 23.1 September 15, 2003 Enesco Group, Inc. 225 Windsor Drive Itasca, IL 60143 Re: Registration Statement on Form S-8 re: Enesco Group, Inc. Retirement Profit Sharing Plan for Union Employees Ladies and Gentlemen: I am Vice President, Secretary and General Counsel of Enesco Group, Inc., an Illinois corporation (the "Company"). This opinion letter has been prepared in connection with the Registration Statement on Form S-8 being filed by the Company with the Securities and Exchange Commission (the "Commission") on or about September 15, 2003 (the "Registration Statement") for the purpose of registering with the Commission under the Securities Act of 1933, as amended (the "1933 Act"), 25,000 shares (the "Shares") of common stock of the Company, par value $0.125 per share, reserved for issuance as Company "matching" contributions under the Enesco Group, Inc. Retirement Profit Sharing Plan for Union Employees (the "Plan"). In this connection, I have examined and am familiar with originals or copies, certified or otherwise identified to my satisfaction, of (i) the Registration Statement, (ii) the Plan, (iii) the Articles of Incorporation and the By-laws of the Company, each as currently in effect, (iv) certain resolutions adopted by the Board of Directors of the Company relating to the Registration Statement and certain other related matters, and (v) a certificate of the Secretary of State of Illinois dated September 9, 2003, certifying that the Company has legal existence and is in good standing in the State of Illinois; and such other documents, certificates and records as I have deemed necessary or appropriate as a basis for the opinions set forth herein. In such examination, I have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, conformed or photostatic copies and the authenticity of the originals of such copies. As to any facts material to the opinions expressed herein which I have not independently established or verified, I have relied upon statements and representations of other officers and representatives of the Company and others regarding, among other things, the compliance with provisions of the Plan. I am admitted to the Bar of the State of Illinois and do not purport to be an expert on any law other than the substantive law of the State of Illinois. Page Two Enesco Group, Inc. September 15, 2003 Based upon and subject to the foregoing, I am of the opinion that: (1) the Company is duly incorporated and validly existing under the laws of the State of Illinois; and (2) the Shares have been duly authorized for issuance and, when the Shares have been issued and delivered in accordance with the terms of the Plan as contemplated by the Registration Statement, the Shares will be validly issued, fully paid and nonassessable. This opinion is being rendered to you as of today. The opinions expresses herein assume that there is no change in the facts, circumstances and law in effect on the date of this opinion, particularly, as they relate to corporate authority and the Company's good standing under Illinois law. I have assumed the Company will remain in good standing as an Illinois corporation at all times when shares of Common Stock are issued in accordance with the terms of the Plan. I assume no obligation to update or supplement this opinion letter to reflect any facts or circumstances which may hereafter come to my attention with respect to the opinions expressed above, including any change in applicable law. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, I do not thereby admit that I am an "expert: under Section 11 of the 1933 Act or the rules and regulations of the Commission promulgated thereunder. Very truly yours, /s/ M. Frances Durden M. Frances Durden Vice President, Secretary and General Counsel EX-23.2 7 c79572exv23w2.txt CONSENT OF KPMG LLP EXHIBIT 23.2 CONSENT OF KPMG LLP The Board of Directors Enesco Group, Inc.: We consent to the incorporation by reference in the registration statement on Form S-8 of Enesco Group, Inc. of our reports dated February 18, 2003 with respect to the consolidated balance sheet of Enesco Group, Inc. and subsidiaries as of December 31, 2002, and the related consolidated statements of operations, retained earnings, comprehensive income and cash flows for the year then ended, and the related consolidated financial statement schedule, which reports are incorporated by reference in and appear in, respectively, the December 31, 2002 annual report on Form 10-K of Enesco Group, Inc. and subsidiaries. Our reports refer to our audit of the transitional disclosures required by Statement of Financial Accounting Standards No. 142, Goodwill and Other Intangible Assets, to revise the 2001 and 2000 consolidated financial statements, as more fully described in Note 1 to the consolidated financial statements. However, we were not engaged to audit, review, or apply any procedures to the 2001 and 2000 consolidated financial statements other than with respect to such disclosures. /s/ KPMG LLP Chicago, Illinois September 15, 2003 -----END PRIVACY-ENHANCED MESSAGE-----