-----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, R7kYvSF3rGs+qO9TooVPQJKUHg3wHgLabh5nbVvX/FALpk1X49ictffceUhteW9a 6ooj54lhaQG2AsYpvhrgLg== 0000950148-99-002059.txt : 19990916 0000950148-99-002059.hdr.sgml : 19990916 ACCESSION NUMBER: 0000950148-99-002059 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19990915 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CYRK INC CENTRAL INDEX KEY: 0000864264 STANDARD INDUSTRIAL CLASSIFICATION: APPAREL & OTHER FINISHED PRODS OF FABRICS & SIMILAR MATERIAL [2300] IRS NUMBER: 043081657 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-43175 FILM NUMBER: 99712263 BUSINESS ADDRESS: STREET 1: 3 POND RD CITY: GLOUCESTER STATE: MA ZIP: 01930 BUSINESS PHONE: 5082835800 MAIL ADDRESS: STREET 1: 3 POND RD CITY: GLOCESTER STATE: MA ZIP: 01930 FORMER COMPANY: FORMER CONFORMED NAME: CYRK INTERNATIONAL INC DATE OF NAME CHANGE: 19930521 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BROWN ALLAN CENTRAL INDEX KEY: 0001041264 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 900 AVE OF THE STARS 4TH FLOOR STE 400 CITY: LOS ANGELES STATE: CA ZIP: 90067-4305 MAIL ADDRESS: STREET 1: 900 AVE OF THE STARS 4TH FLOOR STE 400 CITY: LOS ANGELES STATE: CA ZIP: 90067-4305 SC 13D/A 1 SCHEDULE 13D/A (AMENDMENT NO. 2) 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (AMENDMENT NO. 2) UNDER THE SECURITIES EXCHANGE ACT OF 1934 Cyrk, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, $.01 par value - -------------------------------------------------------------------------------- (Title of Class of Securities) 232817 10 6 - -------------------------------------------------------------------------------- (CUSIP Number) Allan I. Brown c/o Simon Marketing, Inc. 1900 Avenue of the Stars, 4th Floor Los Angeles, California 90067-4301 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: Martin Gelfand, Esq. Irell & Manella LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067-4276 September 1, 1999 - -------------------------------------------------------------------------------- (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 which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. (Continued on following pages) (Page 1 of ___ Pages) 2 - --------------------- ------------------- CUSIP NO. 232817 10 6 13D PAGE __ OF __ PAGES - --------------------- ------------------- - ------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Allan I. Brown - ------------------------------------------------------------------------------- 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - ------------------------------------------------------------------------------- 3. SEC USE ONLY - ------------------------------------------------------------------------------- 4. SOURCE OF FUNDS N/A - ------------------------------------------------------------------------------- 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - ------------------------------------------------------------------------------- 6. CITIZENSHIP OR PLACE OF ORGANIZATION US - ------------------------------------------------------------------------------- 7. SOLE VOTING POWER 1,148,023 --------------------------------------------------------- NUMBER OF 8. SHARED VOTING POWER SHARES BENEFICIALLY 4,869,046* OWNED BY EACH --------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON WITH 1,148,023* --------------------------------------------------------- 10. SHARED DISPOSITIVE POWER 1,148,023* - ------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,148,023* - ------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - ------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.3% (Based on the number of shares of Cyrk, Inc. common stock reported as being outstanding in Cyrk, Inc's Quarterly Report on Form 10-Q for the quarter ending June 30, 1999)* - ------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON IN - ------------------------------------------------------------------------------- -2- 3 * Pursuant to the Shareholders Agreement described in Item 4 of the Schedule 13D, a copy of which is filed with the Schedule 13D, certain shareholders of the Company are required, in specified circumstances, to vote all of the shares of the Company's Common Stock held by each such shareholder in favor of the Reporting Person's election to the Board of Directors of the Company. Accordingly, the Reporting Person may be deemed to be part of a "group" with such shareholders and have voting power over 4,869,046 shares of Common Stock (or approximately 30.9% of the Company's Common Stock, based on the number of shares of Common Stock reported as being outstanding in the Company's Quarterly Report on Form 10-Q for the quarter ending June 30, 1999 as of June 30, 1999). See Item 4 of the Schedule 13D. The parties to the Shareholders Agreement have entered into a Termination Agreement (described in Item 6, below) pursuant to which the parties have agreed to terminate the Voting Agreement, effective and conditioned upon consummation of the transactions contemplated by the Securities Purchase Agreement. In addition, pursuant to the Voting Agreement described in Item 6 below, a copy of which is attached as Exhibit 99.1, certain shareholders of the Company, including the Reporting Person, are required, in specified circumstances, to vote all of the shares of the Company's Common Stock held by each such stockholder in favor of the Securities Purchase Agreement (described in Item 6 below) and the designees of Overseas Toys for election to the Board of Directors of the Company. Accordingly, the Reporting Person may be deemed to be a "group" with such shareholders, although the Reporting Person does not control the voting of the shares of Common Stock owned by the other shareholders. In addition, disposition of the shares of Common Stock owned by the Reporting Person is restricted under certain circumstances by the Voting Agreement. Accordingly, Overseas Toys may be deemed to have shared dispositive power over the shares of Common Stock owned by the Reporting Person. The Reporting Person expressly disclaims beneficial ownership of any shares of Common Stock except the 1,148,023 shares with respect to which he possesses sole or shared dispositive power. -3- 4 This Statement relates to the Schedule 13D (as amended and restated by Amendment No. 1 thereto, the "SCHEDULE 13D") filed by Allan I. Brown with regard to beneficial ownership of common stock, par value $.01 per share (the "COMMON STOCK"), of Cyrk, Inc. (the "COMPANY") and constitutes Amendment No. 2 thereto. Terms used herein and not otherwise defined have the meaning set forth in the Schedule 13D. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF ISSUER Item 6 is hereby amended by adding the following: VOTING AGREEMENT. Pursuant to a Securities Purchase Agreement, dated as of September 1, 1999 (the "SECURITIES PURCHASE AGREEMENT"), between the Company and Overseas Toys, L.P., a Delaware limited partnership ("OVERSEAS TOYS"), Overseas Toys has agreed to purchase from the Company, and the Company has agreed to sell to Oversea Toys, (i) 25,000 shares of a new series of preferred stock of the Company and (ii) a warrant to purchase an additional 15,0000 shares of a new series of preferred stock of the Company, subject to the satisfaction of certain conditions, including approval of the Securities Purchase Agreement by the Company's stockholders. As an inducement for Overseas Toys to enter into the Securities Purchase Agreement, a Voting Agreement, dated as of September 1, 1999 (the "VOTING AGREEMENT"), was entered into among Overseas Toys, Mr. Brown and certain other stockholders of the Company (collectively with Mr. Brown, the "STOCKHOLDERS"). Pursuant to the terms of the Voting Agreement, each Stockholder irrevocably and unconditionally agreed to vote all shares of Common Stock that such Stockholder is entitled to vote in favor of the Securities Purchase Agreement, and the transactions contemplated thereby, and against any action which would reasonably be expected to result in a failure of certain conditions to the consummation of the Securities Purchase Agreement. Each Stockholder also irrevocably and unconditionally agreed to vote all shares of Common Stock that such Stockholder is entitled to vote in favor of the designees of Overseas Toys nominated by the Company (or which Overseas Toys is entitled to have nominated by the Company) for election as directors at any meeting of the Company's stockholders called for such purpose. Each Stockholder also granted a proxy, effective as of the Closing under the Securities Purchase Agreement, appointing Overseas Toys as the Stockholder's attorney-in-fact and proxy, with full power of substitution, for and in the Stockholder's name, to vote, express, consent or dissent, or otherwise to utilize such voting power solely with respect to the matters covered by the agreement of the Stockholders described in the preceding sentence and in the manner contemplated by the Voting Agreement. Pursuant to the terms of the Voting Agreement, each Stockholder also agreed not to sell or otherwise dispose of any shares of Common Stock held by such Stockholder prior to the vote to approve the Securities Purchase Agreement or prior to the Company's 2001 Annual Meeting of Stockholders (but in no event later than December 31, 2001). Notwithstanding the foregoing, a Stockholder may sell shares of Common Stock so long as the recipient agrees to be bound by the terms of the Voting Agreement and executes a counterpart to such effect. Certain Stockholders (not including Mr. Brown) are excluded from the requirements of these restrictions in certain instances. -4- 5 As permitted by the Voting Agreement, Mr. Brown has entered into an Option Agreement conveying the right to purchase 40,818 shares to Vivian Foo (in substantially the form of the "OPTION AGREEMENT"); and Mr. Brown intends to enter into a Stock Assignment transferring 25,000 shares to Bruce R. Bailey, Esq. (in substantially similar form to the "FORM OF STOCK ASSIGNMENT AGREEMENT"). The Voting Agreement will terminate upon the earlier to occur of: (i) the termination of the Securities Purchase Agreement in accordance with its terms, (ii) Overseas Toys ceasing to have the right to designate three nominees to the Board of Directors pursuant to the Securities Purchase Agreement, or (iii) September 1, 2019. In addition, this Voting Agreement will terminate (x) as to certain Stockholders, including Mr. Brown, if Mr. Brown's employment with the Company is terminated by the Company without cause (as such term is defined in the employment agreement between the Company and Mr. Brown) and (y) as to any Stockholder at such time as such Stockholder ceases to beneficially own any Shares (other than as a result of a disposition of such Shares in violation of the Voting Agreement). TERMINATION AGREEMENT. In connection with the execution and delivery of the Securities Purchase Agreement and the Voting Agreement, the parties to the Shareholders Agreement entered into a Termination Agreement, dated as of September 1, 1999 (the "TERMINATION AGREEMENT"), which terminates the Shareholders Agreement, effective upon the consummation of the transactions contemplated by the Securities Purchase Agreement. If the transactions contemplated by the Securities Purchase Agreement are not consummated, the Shareholders Agreement will remain in full force and effect. The foregoing descriptions of the Voting Agreement, Termination Agreement, Option Agreement, and the Form of Stock Assignment Agreement are qualified in their entirety by reference to the Voting Agreement, Termination Agreement, Option Agreement, and the Form of Stock Assignment Agreement, copies of which are attached hereto as Exhibits 99.1, 99.2, 99.3, and 99.4, respectively. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Exhibit 99.1. Voting Agreement, dated as of September 1, 1999, by and among Overseas Toys, L.P., a Delaware limited partnership, Patrick Brady, Allan I. Brown, Gregory P. Shlopak, The Shlopak Foundation, Cyrk International Foundation and the Eric Stanton Self-Declaration of Revocable Trust dated May 11, 1990. Exhibit 99.2. Termination Agreement, dated as of September 1, 1999, by and among the Company, Patrick Brady, Allan Brown, Gregory Shlopak, Eric Stanton and the Eric Stanton Self-Declaration of Revocable Trust dated May 11, 1990. Exhibit 99.3. Form of Option Agreement, dated as of August 31, 1999, by and between Allan I. Brown and Vivian Foo. -5- 6 Exhibit 99.4. Form of Stock Assignment Separate From Certificate, by and between Allan I. Brown and Bruce R. Bailey, Esq. -6- 7 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. Dated: September 14, 1999 /s/ Allan Brown ----------------------------------- Allan I. Brown -7- 8 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION - ----------- ----------- Exhibit 99.1 Voting Agreement, dated as of September 1, 1999, by and among Overseas Toys, L.P., a Delaware limited partnership, Patrick Brady, Allan I. Brown, Gregory P. Shlopak, The Shlopak Foundation, Cyrk International Foundation and the Eric Stanton Self-Declaration of Revocable Trust dated May 11, 1990. Exhibit 99.2 Termination Agreement, dated as of September 1, 1999, by and among the Company, Patrick Brady, Allan Brown, Gregory Shlopak, Eric Stanton and the Eric Stanton Self-Declaration of Revocable Trust dated May 11, 1990. Exhibit 99.3 Form of Option Agreement, dated as of August 31, 1999, by and between Allan I. Brown and Vivian Foo. Exhibit 99.4 Form of Stock Assignment Separate From Certificate, by and between Allan I. Brown and Bruce R. Bailey, Esq.
-8- EX-99.1 2 EXHIBIT 99.1 1 EXHIBIT 99.1 VOTING AGREEMENT VOTING AGREEMENT, dated as of September 1, 1999 among Overseas Toys, L.P., a Delaware limited partnership ("BUYER"), and each other person set forth on the signature page hereof (the "STOCKHOLDERS"). WHEREAS, in order to induce Buyer to enter into the Securities Purchase Agreement, dated as of the date hereof (the "SECURITIES PURCHASE AGREEMENT"), with C, Inc., a Delaware corporation (the "COMPANY"), Buyer has requested the Stockholders, and each Stockholder has agreed, to enter into this Agreement with respect to shares of common stock ("COMMON STOCK") of the Company that each Stockholder beneficially owns, whether now or hereafter acquired (the "SHARES"). NOW, THEREFORE, the parties hereto agree as follows: ARTICLE 1 GRANT OF PROXY; VOTING AGREEMENT; TRANSFER SECTION 1.1. Agreement to Vote for Securities Purchase Agreement. Each Stockholder hereby irrevocably and unconditionally agrees to vote all Shares that such Stockholder is entitled to vote, at the time of any vote to approve the Securities Purchase Agreement and the transactions contemplated thereby at any meeting of the stockholders of the Company, and at any adjournment thereof, at which the Securities Purchase Agreement (or any amended version thereof to which the Stockholder consents) is submitted for the consideration and vote of the stockholders of the Company (or in connection with any consent solicitation conducted for such purpose), in favor of the approval of the Securities Purchase Agreement and the transactions contemplated by the Securities Purchase Agreement and against any action which would reasonably be expected to result in a failure of the conditions described in Article 6 of the Securities Purchase Agreement to be satisfied. SECTION 1.2. Agreement to Vote for Nominees. Each Stockholder hereby irrevocably and unconditionally agrees to vote all Shares that such Stockholder is entitled to vote and/or to cause such Shares to be voted in favor of the designees of the Buyer nominated by the Company (or, if the Company fails to nominate such designees, which the Buyer is entitled to have nominated by the Company pursuant to the Securities Purchase Agreement) for election as directors at any meeting of the Company's stockholders called, or any consent solicitation conducted, for such purpose. SECTION 1.3. Irrevocable Proxy. Each Stockholder hereby revokes any and all previous proxies granted with respect to the Shares that are inconsistent with the voting agreements set forth in Sections 1.1 and 1.2. By entering into this Agreement, each Stockholder hereby grants a proxy, effective upon the Closing under the Securities Purchase Agreement, appointing Buyer as the Stockholder's attorney-in-fact and proxy, with full power of substitution, for and in the Stockholder's name, to vote, express, consent or dissent, or otherwise to utilize 2 Exhibit 99.1 such voting power solely in the manner contemplated by Section 1.2 above. The proxy granted by each Stockholder pursuant to this Article 1 is irrevocable and is coupled with an interest and is granted in consideration of Buyer entering into this Agreement and the Securities Purchase Agreement and as security for the obligations of such Stockholder under Section 1.2. The proxy granted by each Stockholder shall be revoked upon termination of this Agreement in accordance with its terms or, with respect to particular Shares, the sale of such Shares in accordance with the terms hereof. Without limiting the foregoing, each Stockholder will, upon the Buyer's request, take all action as shall be reasonably required from time to time in order to appoint the Buyer as its duly authorized proxy holder for the Shares solely for the purpose set forth in Section 1.2. Such appointment shall be renewed upon the Buyer's request as appropriate by the Stockholder during the term of this Agreement in order to ensure that the Buyer remains the duly authorized proxy holder of the Stockholder at all times during such term solely for the purposeta set forth in Section 1.2. SECTION 1.4 No Proxies for or Dispositions of Shares. Except pursuant to the terms of this Agreement, a Stockholder shall not, without the prior written consent of Buyer, directly or indirectly, (i) grant any proxies or enter into any voting trust or other agreement or arrangement with respect to the voting of any Shares that are inconsistent with the voting agreements set forth in Sections 1.1 and 1.2, (ii) prior to the vote contemplated by Section 1.1 hereof (provided that such vote occurs on or prior to the termination of the Securities Purchase Agreement in accordance with its terms; it being agreed that if such vote has not occurred on or prior to such termination, this clause (ii) shall no longer be effective), sell, assign, transfer, encumber or otherwise dispose of (collectively "SELL," correlative terms to have correlative meanings), or enter into any contract, option or other arrangement or understanding with respect to the direct or indirect sale of any Shares, or (iii) prior to the vote to elect directors of the Company at the Company's 2001 Annual Meeting of Stockholders (but in no event later than December 31, 2001), sell, or enter into any contract, option or other arrangement or understanding with respect to the direct or indirect sale of, any of the Shares held by such Stockholder on the date hereof. Notwithstanding anything in Sections 1.4(ii) or (iii) to the contrary, (x) a Stockholder may sell Shares so long as the recipient agrees to be bound by the terms of this Agreement and executes a counterpart to such effect, (y) Gregory P. Shlopak may sell up to thirty percent (30%) of his Shares between the date hereof and the date of the vote contemplated by Section 1.1 (provided that such vote occurs on or prior to the termination of the Securities Purchase Agreement in accordance with its terms; it being agreed that if such vote has not occurred prior to such termination, Mr. Shlopak shall thereafter be able to sell without limitation his Shares), and (z) the restriction set forth in Section 1.4(iii) shall not apply to Mr. Shlopak. Any of Messrs. Brady and Brown and the Eric Stanton Self-Declaration of Revocable Trust dated May 11, 1990 (the "TRUST") may transfer any right to sell any Shares pursuant to this Agreement amongst themselves. SECTION 1.5 Options. The Buyer acknowledges that Mr. Brown and the Trust have granted options (the "OPTIONS") to purchase an aggregate of 40,818 -2- 3 Exhibit 99.1 Shares and 81,637 Shares, respectively, and have agreed to sell an additional 25,000 Shares each, to certain individuals. Any sales of Shares pursuant to exercise of the Options or such agreements to sell are expressly permitted under this Agreement and shall be disregarded in determining the number of Shares that Mr. Brown and the Trust may sell pursuant to Section 1.4. SECTION 1.6 Record Owner. If a Stockholder is not the record owner of any Shares as to which such Stockholder is the beneficial owner, such Stockholder agrees to cause or direct the record holder to vote such Shares in accordance with the terms of this Agreement or, to the extent permitted by law, to provide a proxy to the Buyer with respect thereto. SECTION 1.7 Opinions.. Each of Mr. Brady, the Cyrk International Foundation and the Trust shall either (i) provide to the Buyer no later than the closing of the transactions contemplated by the Securities Purchase Agreement an opinion of counsel, which opinion and counsel are reasonably satisfactory to Buyer (and which opinion shall be deemed to be satisfactory to Buyer if it is substantially in the form the Buyer has accepted from counsel to any other Stockholder hereunder), or (ii) reimburse the Buyer up to $25,000 for the reasonable fees and out-of-pocket costs of special counsel engaged by the Buyer for the purposes of providing such an opinion of counsel with respect to such Stockholder. ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS Each Stockholder represents and warrants to Buyer that: SECTION 2.1. Authorization. The execution, delivery and performance by Stockholder of this Agreement and the consummation by Stockholder of the transactions contemplated hereby are within the powers of Stockholder and, if Stockholder is an entity, such execution, delivery and performance have been duly authorized by all necessary action of such entity and the individual signing this Agreement on behalf of such Stockholder represents that he is authorized to bind the entity thereby. This Agreement constitutes a valid and binding Agreement of Stockholder, enforceable in accordance with its terms. SECTION 2.2. Non-Contravention. The execution, delivery and performance by Stockholder of this Agreement and the consummation of the transactions contemplated hereby do not and will not, (i) violate any applicable law, rule, regulation, judgment, injunction, order or decree, (ii) require any consent or other action by any person or private or governmental entity under, constitute a default under, or give rise to any right of termination, cancellation or acceleration or to a loss of any benefit to which Stockholder is entitled under any provision of any agreement or other instrument binding on Stockholder or (iii) result in the imposition of any lien or encumbrance on any asset of Stockholder, other than, in respect of each of clauses (i), (ii) and (iii), any such items as would -3- 4 Exhibit 99.1 not, individually or in the aggregate, prevent or materially impair the ability of Stockholder to consummate the transactions contemplated by this Agreement. SECTION 2.3. Ownership of Shares. Stockholder is the sole beneficial owner of the Shares set forth opposite such Stockholder's name on the signature page hereto, free and clear of any lien or encumbrance (including any restriction on the right to vote or otherwise dispose of the Shares), other than (i) the Options and agreements to sell referenced in Section 1.5, (ii) the pledge of 52,904 Shares to the Company by Mr. Brown pursuant to a Promissory Note and Stock Pledge Agreement, and (iii) in the case of the Trust, any beneficial interest a beneficiary of the Trust may have. None of such Shares is subject to any voting trust or other agreement or arrangement with respect to the voting of such Shares. SECTION 2.4. Total Shares. Except for the Shares set forth opposite such Stockholder's name on the signature page hereto, Stockholder does not beneficially own any (i) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or (iii) options or other rights to acquire from the Company any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, other than options granted under the Company's stock option plans. SECTION 2.5. Finder's Fees. No investment banker, broker, finder or other intermediary is entitled to a fee or commission from Buyer or the Company in respect of this Agreement based upon any arrangement or agreement made by or on behalf of Stockholder. ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF BUYER Buyer represents and warrants to each Stockholder: SECTION 3.1. Corporate Authorization. The execution, delivery and performance by Buyer of this Agreement and the consummation by Buyer of the transactions contemplated hereby are within the limited partnership powers of Buyer and have been duly authorized by all necessary limited partnership action. This Agreement constitutes a valid and binding Agreement of Buyer, enforceable in accordance with its terms. SECTION 3.2. Non-Contravention. The execution, delivery and performance by the Buyer of this Agreement and the consummation of the transactions contemplated hereby do not and will not, (i) violate any applicable law, rule, regulation, judgment, injunction, order or decree, (ii) require any consent or other action by any person or private or governmental entity under, constitute a default under, or give rise to any right of termination, cancellation or acceleration or to a loss of any benefit to which the Buyer is entitled under any provision of any agreement or other instrument binding on the Buyer or (iii) result in the imposition of any lien or encumbrance on any asset of Buyer, other than, in -4- 5 Exhibit 99.1 respect of each of clauses (i), (ii) and (iii), any such items as would not, individually or in the aggregate, prevent or materially impair the ability of the Buyer to consummate the transactions contemplated by this Agreement. SECTION 3.3. Finder's Fees. No investment banker, broker, finder or other intermediary is entitled to a fee or commission from a Stockholder or the Company in respect of this Agreement based upon any arrangement or agreement made by or on behalf of the Buyer. -5- 6 Exhibit 99.1 ARTICLE 4 MISCELLANEOUS SECTION 4.1. Further Assurances. Buyer and each Stockholder will execute and deliver, or cause to be executed and delivered, all further documents and instruments and use all reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations, to vote their Shares to approve the Securities Purchase Agreement and the transactions contemplated thereby, and to take all other acts required to be taken by Buyer or such Stockholder pursuant to this Agreement. SECTION 4.2. Amendments; Termination. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement or in the case of a waiver, by the party against whom the waiver is to be effective. This Agreement shall terminate upon the earlier to occur of (i) the termination of the Securities Purchase Agreement in accordance with its terms, (ii) the Buyer ceasing to have the right under Section 4.5(e)(A) of the Securities Purchase Agreement to designate three nominees to the Board of Directors of the Company, or (iii) September 1, 2019. In addition, this Agreement will terminate (x) as to Mr. Brown and the Trust if Mr. Brown's employment with the Company is terminated by the Company without cause (as such term is defined in the employment agreement between the Company and Mr. Brown) and (y) as to any Stockholder at such time as such Stockholder ceases to beneficially own any Shares (other than as a result of a disposition of such Shares in violation of this Agreement). SECTION 4.3. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given upon receipt by the parties at the following addresses (or at such other address for a party as shall be specified by like notice): (a) if to Buyer, to: The Yucaipa Companies 10000 Santa Monica Blvd., 5th Floor Los Angeles, California 90067 Attn: Robert Bermingham Facsimile: 310-789-7201 -6- 7 Exhibit 99.1 with a copy to: Munger, Tolles & Olson LLP 355 South Grand Avenue, 35th Floor Los Angeles, California 90071-1560 Attn: Judith Kitano Facsimile: 213-687-3702 (b) if to a Stockholder, to the address set forth under such Stockholder's name on Exhibit A hereto, with a copy to the person indicated on Exhibit A hereto. SECTION 4.4. Expenses. All costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense. SECTION 4.5. Successors and Assigns; Third Party Beneficiaries. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of the other parties hereto. Notwithstanding anything contained in this Agreement to the contrary, nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except that that the covenants made by the Stockholders in Article 1 hereof and Section 4.10 shall inure to the benefit of and be enforceable by the Company (it being expressly understood, however, that such Article may be amended by the parties, and compliance with any of the provisions of that Article may be waived, in each case without the consent of or notice to the Company). SECTION 4.6. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware, without regard for the conflicts of law principles thereof. SECTION 4.7. Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto. SECTION 4.8. Severability. If any term, provision or covenant of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, and if the rights or obligations of any party hereto under this Agreement will not be materially and adversely affected thereby, (i) such provision will be fully severable, (ii) this Agreement will be construed and enforced as if such invalid, void or -7- 8 Exhibit 99.1 unenforceable provision had never comprised a part hereof, (iii) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the invalid, void or unenforceable provision or by its severance herefrom and (iv) in lieu of such invalid, void or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such invalid, void or unenforceable provision as may be possible so as to carry out the intent of the parties hereto to the maximum extent permitted by law. SECTION 4.9. Notice of Sales. Until September 1, 2004, each Stockholder agrees to provide written notice to the Buyer of any sale of Shares by such Stockholder within thirty days following such sale (or within five business days following such sale if, to such Stockholder's knowledge, such sale occurs thirty or fewer days prior to the record date for any meeting of the stockholders of the Company); provided, however, that any failure to provide such notice shall not be deemed to be a breach of this Agreement. Any public filing that a Stockholder makes with respect to a sale of Shares shall be deemed to be notice to the Buyer. SECTION 4.10. Legend. Each Stockholder agrees that the certificates representing any of such Stockholder's Shares the sale of which is prohibited by Section 1.4 may contain a legend to the effect that such Shares are subject to the terms of this Agreement, which limits the ability of the Stockholder to sell such Shares. Each Stockholder shall promptly, and in any event within thirty (30) days, deliver such Stockholder's certificates to the Company for legending in accordance with this section. The parties agree to cooperate in removing the legend from any certificate that represents Shares that are no longer subject to any sale restrictions. SECTION 4.11. Entire Agreement. This Agreement, its exhibits and the documents executed in connection herewith, constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersede all prior agreements and understandings, oral and written, between the parties hereto with respect to the subject matter hereof. SECTION 4.12. Specific Performance. The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement is not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof in addition to any other remedy to which they are entitled at law or in equity. -8- 9 Exhibit 99.1 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. OVERSEAS TOYS, L.P. By:OA3, L.L.C., its General Partner By: /s/ Robert Bermingham --------------------------------------- Name: Robert Bermingham Title: Secretary
No. of Shares beneficially owned /s/ Patrick Brady - ---------------------------------------------- Name: Patrick Brady 1,205,192 /s/ Allan I. Brown - ---------------------------------------------- Name: Allan I. Brown 1,148,023 /s/ Gregory P. Shlopak 1,192,999 - ---------------------------------------------- Name: Gregory P. Shlopak THE SHLOPAK FOUNDATION 84,401 By: /s/ Gregory P. Shlopak ------------------------------------------ Name: Gregory P. Shlopak Title: Trustee CYRK INTERNATIONAL FOUNDATION 90,408 By: /s/ Patrick Brady ------------------------------------------- Name: Patrick Brady Title: President, Chief Executive Officer and Chief Operating Officer THE ERIC STANTON SELF-DECLARATION OF 1,148,023 REVOCABLE TRUST DATED MAY 11, 1990 By: /s/ Eric Stanton ------------------------------------------ Name: Eric Stanton Title: Trustee
-9- EX-99.2 3 EXHIBIT 99.2 1 EXHIBIT 99.2 TERMINATION AGREEMENT This Termination Agreement is entered into as of September 1, 1999 by and among Cyrk, Inc., a Delaware corporation (the "Company"), Patrick Brady, Allan Brown, Gregory Shlopak, Eric Stanton and Eric Stanton Self-Declaration of Revocable Trust (each a "Stockholder", and collectively the "Stockholders"). Introduction The Company and the Stockholders are parties to a Shareholders Agreement, dated June 9, 1997, as amended on July 21, 1997, and attached hereto as E-3035427 Exhibit A (the "Shareholders Agreement"). The Company and each of the Stockholders wish to terminate the Shareholders Agreement in its entirety pursuant to the terms and conditions set forth herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Section 1. Termination. As of the closing (the "Closing") of the transactions contemplated by the Securities Purchase Agreement between the Company and Overseas Toys, L.P. (the "Investor"), dated the date hereof (the "Securities Purchase Agreement"), the Shareholders Agreement shall be terminated in its entirety, and shall be of no further force and effect. For the avoidance of doubt, Eric Stanton hereby acknowledges and agrees that at the Closing any right he had to be named to the Board of Directors of the Company (the "Board") pursuant to his Consulting Agreement with SMI Merger and the Company, dated May 7, 1997 (the "Consulting Agreement"), or otherwise shall be terminated in its entirety and shall be of no further force and effect. In addition, Eric Stanton also acknowledges and agrees that he shall not exercise any right to be named to the Board pursuant to the Shareholders Agreement, the Consulting Agreement or otherwise from the date hereof until the termination of the Securities Purchase Agreement. Section 2. Conflicts. If there arises any conflict among any provision of the Shareholders Agreement and/or this Agreement, on the one hand, and any provision in the Voting Agreement entered into as of the date hereof among the Stockholders and the Investors (the "Voting Agreement"), on the other hand, then such provisions or provisions in the Voting Agreement, as the case may be, shall prevail. Section 3. Governing Law. This agreement shall be governed by and construed in accordance with the laws of the state of Delaware, without regard to its choice of law principles. Section 4. Counterparts. This agreement may be executed in multiple counterparts, and counterparts by facsimile, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. 2 Exhibit 99.2 IN WITNESS WHEREOF, the parties have signed this Agreement as of the date first above written. /s/ Patrick Brady CYRK, INC. - -------------------------------- Patrick Brady By: /s/ Patrick Brady ---------------------------- Patrick Brady, President, Chief Executive Officer and Chief Operating Officer /s/ Eric Stanton - -------------------------------- Eric Stanton /s/ Allan Brown THE ERIC STANTON SELF-DECLARATION - -------------------------------- OF REVOCABLE TRUST Allan Brown /s/ Gregory Shlopak By: /s/ Eric Stanton - -------------------------------- ---------------------------- Gregory Shlopak Eric Stanton, as Trustee EX-99.3 4 EXHIBIT 99.3 1 EXHIBIT 99.3 STOCK OPTION AGREEMENT THIS STOCK OPTION AGREEMENT (the "OPTION AGREEMENT") is made and entered into as of August 31, 1999, by and between Allan I. Brown ("BROWN") and Vivian Foo ("OPTIONEE"). Brown has granted Optionee this option ("Option") to purchase a total of 40,818 shares of the COMMON STOCK of CYRK, INC., $.01 par value per share (the "SHARES" of the "COMPANY"), at the price determined as provided herein. Brown has determined that it is to his advantage and in his best interest to grant this Option to Optionee. 1. EXERCISE PRICE. The exercise price is $1.00 for each SHARE. 2. VESTING AND EXERCISABILITY. This Option shall vest and become exercisable as follows: 2.1 RIGHT TO EXERCISE. 2.1.1 This Option shall be exercisable, in whole or in part, commencing on the date thirty (30) days following the date of the execution of this Option Agreement. If exercised in part, the balance of this Option shall be exercisable at any time thereafter. 2.1.2 This Option may not be exercised for a fraction of a Share. 2.1.3 In no event may this Option be exercised after the date of expiration of the term of this Option as set forth in Section 7 below. 2.2 METHOD OF EXERCISE. This Option shall be exercisable by written notice in the form attached hereto as EXHIBIT A which shall state the election to exercise this Option, the number of Shares in respect of which this Option is being exercised, and such other representations and agreements as to Optionee's investment intent with respect to such Shares as may be required by Brown. Such written notice shall be signed by Optionee (or by Optionee's beneficiary or other person entitled to exercise this Option in the event of Optionee's death under Section 8 of this Option Agreement) and shall be delivered in person or by certified mail to Brown. The written notice shall be accompanied by payment of the exercise price. This Option shall be deemed exercised upon receipt by Brown of such written notice accompanied by the exercise price. No Shares will be issued pursuant to the exercise of this Option unless and until there shall have been full compliance with all applicable requirements of the Securities Act of 1933, as amended (whether by registration or satisfaction of exemption conditions), all applicable laws, and all applicable listing requirements of any national securities exchange or other market system on which shares of the same class are then listed. 2 Exhibit 99.3 3. OPTIONEE'S REPRESENTATIONS AND SECURITIES LAW COMPLIANCE. In the event the Shares purchasable pursuant to the exercise of this Option have not been registered under the Securities Act of 1933, as amended, at the time this Option is exercised, the certificate for the Shares shall bear appropriate legends. 4. METHOD OF PAYMENT. Payment of the exercise price shall be in full at the time of exercise in cash or by check payable to the order of Brown. 5. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the issuance of such Shares upon such exercise or the method of payment of consideration for such Shares would constitute a violation of the Securities Act of 1933, as amended, or of any applicable law. As a condition to the exercise of this Option, Brown may require Optionee to make any representation and warranty to Brown as may be necessary or appropriate, in Brown's judgment, to comply with any Applicable Law. 6. ADJUSTMENT FOR REORGANIZATIONS, STOCK SPLITS, ETC. If the outstanding shares of the Common Stock of the Company are increased, decreased, changed into, or exchanged for a different number or kind of shares or securities of the Company or a successor entity, or for other property (including, without limitation, cash) through reorganization, recapitalization, reclassification, stock dividend, stock split or reverse stock split, spin off, or other similar transaction, an appropriate and proportionate adjustment shall be made in the maximum number and kind of shares as covered by the Option. Such adjustment will be made by Brown, whose determination in that respect will be final, binding, and conclusive. 7. TERM OF OPTION. This Option may not be exercised more than two (2) years from the date of grant of this Option, and may be exercised during such term only in accordance with terms of this Option. 3 Exhibit 99.3 8. NON-TRANSFERABILITY OF OPTION. 8.1 NO TRANSFER. This Option may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Optionee, only by the Optionee. 8.2 DESIGNATION OF BENEFICIARY. The Optionee may file a written designation of a beneficiary who is to receive any Options that remain unexercised in the event of the Optionee's death. If a participant is married and the designated beneficiary is not the spouse, spousal consent will be required for the designation to be effective. The Optionee may change such designation of beneficiary at any time by written notice to the Administrator, subject to the above spousal consent requirement. 8.3 EFFECT OF NO DESIGNATION. If the Optionee dies and there is no beneficiary, validly designated under Section 8.2 and living at the time of the Optionee's death, Brown will deliver such Options to the executor or administrator of his or her estate, or if no such executor or administrator has been appointed (to the knowledge of Brown), Brown, in his discretion, may deliver such Options to the spouse or to any one or more dependents or relatives of the Optionee, or if no spouse, dependent or relative is known to Brown, then to such other person as the Company may designate. 8.4 DEATH OF SPOUSE OR DISSOLUTION OF MARRIAGE. If the Optionee designates his or her spouse as beneficiary under Section 8.2, that designation will be deemed automatically revoked if the Optionee's marriage is later dissolved. Similarly, any designation of a beneficiary under Section 8.2 will be deemed automatically revoked upon the death of the beneficiary if the beneficiary predeceases the Optionee. Without limiting the generality of the preceding sentence, the interest in Options of a spouse of an Optionee who has predeceased the Optionee whose marriage has been dissolved will automatically pass to the Optionee, and will not be transferrable by such spouse in any manner, including but not limited to such spouse's will, nor will any such interest pass under the laws of intestate succession. 9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY IN CALIFORNIA, WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF CALIFORNIA OR ANY OTHER JURISDICTION. 4 Exhibit 99.3 10. NOTICES. Any notice required or permitted under this Agreement shall be given in writing by express courier or by postage prepaid, United States registered or certified mail, return receipt requested, to the address set forth below or to such other address for a party as that party may designate by ten (10) days advance written notice to the other parties. Notice shall be effective upon the earlier of receipt or three (3) days after the mailing of such notice. If to Brown: Allan I. Brown c/o Simon Marketing 1900 Avenue of the Stars 5th Floor Los Angeles, Ca 90067 with a copy to: Irell & Manella, LLP 1800 Avenue of the Stars Suite 900 Los Angeles, CA 90067 Attn: Martin Gelfand, Esq. If to Optionee: Vivian Foo -------------------------- -------------------------- -------------------------- [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 5 Exhibit 99.3 DATE OF GRANT: AUGUST 31, 1999 "BROWN" allan I. Brown By: -------------------------------- Allan I. Brown OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS OPTION, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN EMPLOYEE OF THE COMPANY FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL. NOTHING IN THIS OPTION AGREEMENT SHALL LIMIT IN ANY MANNER WHATSOEVER THE RIGHT OR POWER OF THE COMPANY OR ITS SHAREHOLDERS TO TERMINATE OPTIONEE'S RELATIONSHIP WITH THE COMPANY WITH OR WITHOUT CAUSE. Optionee also acknowledges that the grant of this Option, the purchase of Shares upon exercise of this Option, and the sale of such Shares has important tax implications. Optionee has reviewed this Option in their entirety, has had an opportunity and has been encouraged to obtain the advice of his or her independent legal counsel and tax advisor prior to executing this Option and fully understands all provisions of this Option. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of Brown upon any questions arising under the Option Agreement. -------------------------------- Vivian Foo (the "OPTIONEE") By his or her signature below, the spouse of Optionee affirms that he/she has read in its entirety and agrees to be bound by all of the terms and conditions of the foregoing Option Agreement, including, but not limited to, Section 8.4 of this Option Agreement, which states that an Optionee's beneficiary designation shall be deemed automatically revoked if the Optionee names a spouse as beneficiary and the marriage is later dissolved, and that the interest in Options of a spouse of an Optionee who has predeceased the Optionee or whose marriage has been dissolved shall automatically pass to the Optionee, and shall not be transferable by such spouse in any manner. -------------------------------- (the "SPOUSE") EX-99.4 5 EXHIBIT 99.4 1 EXHIBIT 99.4 STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE FOR PAST SERVICES RENDERED TO SIMON MARKETING, INC., the undersigned hereby assigns and transfers unto: BRUCE R. BAILEY, ESQ. 25,000 shares of the Common Stock of Cyrk, Inc., a Delaware corporation (the "Company"), standing in the name of the undersigned on the books of the Company, represented by Certificate No(s). ____________ and do hereby irrevocably constitute and appoint the Company's Secretary, or his agent, as attorney to transfer the said stock on the books of the Company, with full power of substitution in the premises. Dated: ------------------------- ALLAN I. BROWN By: -------------------------------- Allan I. Brown -----END PRIVACY-ENHANCED MESSAGE-----