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EXHIBIT 10.37
Execution Copy
SECURITIES PURCHASE AGREEMENT
INTRODUCTION
This Securities Purchase Agreement is made as of the 12th day of February,
1998, by and between Cyrk, Inc., a Delaware corporation (the "COMPANY"), and Xx
Xxxxxx, an individual (the "PURCHASER").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
TERMS AND CONDITIONS
ARTICLE I. THE PURCHASE AND SALE OF STOCK
SECTION 1.01. SALE AND ISSUANCE OF COMMON STOCK AND WARRANT. Subject to the
terms and conditions hereof, and in reliance on the representations and
warranties contained herein, at the Closing described in Section 1.03, the
Company shall issue and sell to the Purchaser, and the Purchaser shall purchase
from the Company (i) a warrant to purchase up to 100,000 shares of the Company's
Common Stock, par value $0.01 per share, at a price per share of $10.25 (the
"WARRANT") and (ii) 975,610 shares of Common Stock, par value $0.01 per share
(the "PURCHASED SHARES") for an aggregate purchase price of $10,000,000 (the
"PURCHASE Price").
SECTION 1.02. PAYMENT FOR THE STOCK AND WARRANT. The Purchaser shall pay
the Purchase Price in full at the Closing by wire transfer of immediately
available funds to an account designated in writing by the Company.
SECTION 1.03. THE CLOSING. The purchase and sale of the Purchased Shares
and Warrant shall take place at a closing (the "CLOSING") to be held at the
offices of Xxxxxx, Mall & Xxxxxxx, Exchange Place, Boston, Massachusetts at
10:00 a.m. local time on the date hereof, or such other place, time and date as
the Company and the Purchaser may agree in writing (the "CLOSING DATE").
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ARTICLE II. THE PUT OPTION AND THE REPURCHASE OPTION
SECTION 2.01. PURCHASER'S RIGHT TO PUT; PUT PRICE; PAYMENT. For a period
of twelve (12) weeks from the date hereof, the Purchaser shall have the right to
sell; and the Company shall have the obligation to purchase, up to 500,000 of
the Purchased Shares (the "PUT OPTION") at an initial price per share of $10.00
(the "INITIAL PUT PRICE"). The Initial Put Price shall be reduced by $0.50 per
share each week. The Initial Put Price as reduced week to week is referred to as
the "PUT PRICE." Payment to the Purchaser for any shares to be repurchased
pursuant to this Put Option shall be made by wire transfer of immediately
available funds in an amount equal to the number of shares then being purchased
multiplied by the then applicable Put Price. The Put Option shall terminate and
be of no further force or effect twelve (12) weeks from the date hereof or upon
written waiver by the Purchaser, whichever is the first to occur.
SECTION 2.02. RIGHT OF COMPANY TO REPURCHASE. If the License Agreement
dated December 18, 1997 between the Purchaser and the Company (the "LICENSE
AGREEMENT") is terminated for any reason, the Company shall have the option but
not the obligation to repurchase all or any part of the Purchased Shares then
held by the Purchaser or any affiliate, as defined under the Securities Act of
1933, as amended (the "SECURITIES ACT") of the Purchaser (the "REPURCHASE
OPTION"). Such Repurchase Option shall be exercisable by written notice to the
Purchaser within 180 days of the date of termination of the License Agreement.
SECTION 2.03. REPURCHASE PRICE; PAYMENT. If the Company exercises the
Repurchase Option, the price per share to be paid to the Purchaser shall be the
average closing bid and ask price of the Company's Common Stock as reported by
the Nasdaq National Market during the twenty (20) trading days immediately
preceding the date the Repurchase Option is exercised (the "REPURCHASE PRICE").
Payment to the Purchaser for the shares to be repurchased hereunder shall be
made by wire transfer of immediately available funds in an amount equal to the
number of shares being repurchased multiplied by the Repurchase Price.
SECTION 2.04. DELIVERY OF CERTIFICATE. If Purchased Shares shall be
repurchased pursuant to the Repurchase Option or the Put Option, the Purchaser,
or in the event of his death, his personal representative, shall forthwith
deliver to the Secretary of the Company the certificates for such repurchased
shares, free of all encumbrances, accompanied by such instrument of transfer, if
any, as may reasonably be required by the Secretary of the Company.
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ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser that as of the date
hereof each of the statements contained in this Article III is true and correct
and will be true and correct as of the Closing Date:
SECTION 3.01. CORPORATE EXISTENCE AND POWER. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware and has all necessary corporate and other power and authority
to conduct its business and own its properties as now conducted. True and
correct copies of the Certificate of Incorporation and By-laws of the Company,
with all amendments thereto, as in effect on the date hereof, have been
furnished to the Purchaser by the Company. The Company is licensed or qualified
to do business as a foreign corporation in each jurisdiction in which the
nature of its business or the ownership of its properties makes such licensing
or qualification necessary and where the failure to so qualify would have a
material adverse effect.
SECTION 3.02. AUTHORITY; NO CONFLICT. This Agreement has been duly executed
by the Company and is authorized by all necessary corporate action on the part
of the Company, and is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms. The Company has all corporate
power and authority necessary to enable it to carry out the transactions
contemplated by this Agreement. Neither the execution or delivery by the Company
of this Agreement or any document contemplated by this Agreement nor the
consummation by the Company of the transactions contemplated by this Agreement
or any document contemplated by this Agreement will violate, result in a breach
of, constitute a default under, or give any party other than the Company or a
subsidiary of the Company the right to terminate, or modify the rights or
obligations of the Company or any of its subsidiaries under, (i) any agreement
or instrument to which the Company or any of its subsidiaries is a party or by
which any of them is bound, (ii) any statute, ordinance or other law to which
the Company or any of its subsidiaries is subject, (iii) any rule or regulation
of any governmental agency having jurisdiction over the Company or any of its
subsidiaries, (iv) any license, permit or other governmental authorization held
by the Company or any of its subsidiaries, or (v) any order or decree of any
court or governmental agency having jurisdiction over the Company or any of its
subsidiaries or any of their assets.
SECTION 3.03. GOVERNMENT APPROVALS. No governmental filings,
authorizations, approvals or consents, or other governmental action, are
required to permit the Company to fulfill all of its obligations under this
Agreement or any
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document contemplated by this Agreement, except as contemplated by Article VI.
SECTION 3.04. COMPLIANCE WITH LAWS. The Company has complied with, is not
in violation of, and has not received any notices of violation with respect to,
any federal, state or local statute, law or regulation with respect to the
conduct of its business, or the ownership or operation of its business, except
for failures to comply or violations which would not be reasonably likely to
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
SECTION 3.05. SEC DOCUMENTS. The Company has made all necessary filings
with the Securities and Exchange Commission during 1997, and, as of their
respective filing dates, all such filings complied as to form in all material
respects with the applicable requirements of the Securities Act or the
Securities Exchange Act of 1934, as amended (the EXCHANGE ACT") and were
complete and correct in all material respects.
SECTION 3.06. AUTHORIZATION OF THE PURCHASED SHARES. The Purchased Shares
and the Warrant Shares (as defined in the Warrant) to be issued pursuant to this
Agreement, when issued and delivered in accordance with this Agreement, will be
duly and validly authorized and issued, fully paid and nonassessable.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Except as otherwise set forth in the separate disclosure schedules attached
to and made a part of this Agreement, the Purchaser represents and warrants to
the Company that as of the date hereof each of the statements contained in this
Article IV is true and correct and will be true and correct as of the Closing
Date:
SECTION 4.01. GOVERNMENT APPROVALS. No governmental filings,
authorizations, approvals or consents, or other governmental action, are
required to permit the Purchaser to fulfill all its obligations under this
Agreement or any document contemplated by this Agreement.
SECTION 4.02. PURCHASE FOR INVESTMENT. This Agreement is made with the
Purchaser in reliance upon the Purchaser's representation to the Company, which
by execution of this Agreement the Purchaser hereby confirms, that the Purchased
Shares, the Warrant and the Warrant Shares will be acquired for investment for
the Purchaser's own account, not as a nominee or agent, and not with a view to
the distribution of any part thereof, and that the Purchaser has no present
intention of selling, granting any participation in, or otherwise distributing
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the same. By executing this Agreement, the Purchaser further represents that
does not have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participation to such person or to any third
person, with respect to any of the Purchased Shares, the Warrant or the Warrant
Shares. The Purchaser understands that (i) the Purchased Shares, the Warrant and
the Warrant Shares are not registered and must be held indefinitely unless
registered under the Securities Act or unless an exemption from such
registration is available; and (ii) routine sales of the Purchased Shares made
in reliance upon Rule 144 under the Securities Act can be made only in
accordance with the terms and conditions of such Rule.
SECTION 4.03. RECEIPT OF INFORMATION. The Purchaser has received all
information that it has requested from the Company and believes that such
information is sufficient to make an informed decision with respect to the
purchase of the Purchased Shares, the Warrant and the Warrant Shares.
SECTION 4.04. FINANCIAL RESOURCES; KNOWLEDGE AND EXPERIENCE. The Purchaser
possesses the financial resources to bear the risk of economic loss with respect
to its purchase of the Purchased Shares, the Warrant and the Warrant Shares,
including the loss of its entire investment. The Purchaser has such knowledge
and experience in financial and business matters that it is able to evaluate the
merits and make an informed investment decision with respect to its purchase of
the Purchased Shares, the Warrant and the warrant Shares.
SECTION 4.05. LEGEND. It is understood that legends in substantially the
following forms will be placed on certificates representing the Purchased Shares
and the Warrant:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR THE SECURITIES LAWS
OF ANY STATE. SUCH SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF EFFECTIVE
REGISTRATION STATEMENTS COVERING SUCH SECURITIES UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
(b) THE COMPANY IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS AND SERIES OF
STOCK. THE COMPANY WILL FURNISH THE HOLDER HEREOF A STATEMENT OF THE
POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE PARTICIPATING,
OPTIONAL, OR OTHER SPECIAL RIGHTS OF EACH CLASS AND SERIES OF STOCK
AND THE QUALIFICATIONS, LIMITATION OR RESTRICTIONS OF SUCH
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PREFERENCES AND/OR RIGHTS WITHOUT CHARGE UPON REQUEST.
SECTION 4.06. ACCREDITED INVESTOR. This Agreement is made with the
Purchaser in reliance upon the Purchaser's representation to the Company, which
by execution of this Agreement the Purchaser hereby confirms, that the Purchaser
is an "accredited investor" as such term is defined in Regulation D under the
Securities Act.
SECTION 4.07. NO CONFLICTS. The Purchaser is not subject to or bound by any
provision of:
(a) any law, statute, rule, regulation or judicial or administrative
decision,
(b) any articles or certificates of incorporation or by-laws,
(c) any mortgage, deed of trust, lease, note, shareholders' agreement,
bond, indenture, other material instrument or agreement, license, permit, trust,
custodianship, other restriction, or
(d) any judgment, order, writ, injunction or decree of any court,
governmental body, administrative agency or arbitrator,
that would prevent, or be violated by, or that would result in the creation of
any encumbrance or lien as a result of, or under which there would be a default
or right of termination as a result of, the execution, delivery and performance
by the Purchaser of this Agreement and the consummation of the transactions
contemplated hereby other than violations, defaults, cancellations,
terminations, payments, acceleration rights or failures to obtain consents
which, singly and in the aggregate, have not had and would not have a material
adverse effect on the enforceability or validity of this Agreement.
ARTICLE V. CONDITIONS TO THE CLOSING
The obligation of the Purchaser to purchase the Purchased Shares and the
Warrant at the Closing shall be subject to the satisfaction of the following
conditions contained in Sections 5.01 through 5.04, in each case at and as of
the Closing:
SECTION 5.01. ISSUANCE OF SECURITIES. The Company shall have duly issued
and delivered to the Purchaser a certificate for the Purchased Shares and a
Warrant.
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SECTION 5.02. REPRESENTATIONS CORRECT, ETC. The representations and
warranties of the Company set forth in Article III shall be true at and as of
the Closing, in all material respects, as if made as of the date of the Closing,
and the Company shall be in compliance in all material respects with each of the
covenants contained in Article VI of this Agreement.
SECTION 5.03. NO LITIGATION. No action, suit, proceeding or investigation
shall have been instituted or, to the Company's knowledge, threatened which
seeks to restrain, restrict or prohibit or impose material penalties or damages
with respect to the consummation of the transactions contemplated by this
Agreement.
SECTION 5.04. PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated hereby and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in form and substance to the Purchaser and its counsel.
The obligation of the Company to sell the Purchased Shares to the Purchaser
at the Closing shall be subject to the satisfaction of the following conditions
contained in Sections 5.06 through 5.08, in each case at and as of the time of
the Closing:
SECTION 5.05. PAYMENT OF PURCHASE PRICE. The Purchaser shall have paid the
Purchase Price for the Purchased Shares and the Warrant pursuant to Section
1.02.
SECTION 5.06. REPRESENTATIONS CORRECT, ETC. The representations and
warranties of the Purchaser set forth in Article IV shall be true at and as of
the Closing, in all material respects, as if made as of the date of the Closing.
SECTION 5.07. NO LITIGATION. No action, suit, proceeding or investigation
shall have been instituted or, to the Company's knowledge, threatened which
seeks to restrain, restrict or prohibit or impose material penalties or damages
with respect to the consummation of the transactions contemplated by this
Agreement.
SECTION 5.08. PROCEEDINGS AND DOCUMENTS. All corporate and other
proceedings in connection with the transactions contemplated hereby and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in form and substance to the Company and its counsel.
ARTICLE VI. REGISTRATION RIGHTS
SECTION 6.01. DEMAND REGISTRATION RIGHTS. If, at any time after the
expiration or waiver of the Put Option, the Purchaser
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requests that the Company file a registration statement under the Securities Act
of 1933, as amended (the "Act"), for all or part of the Purchased Shares,
provided that the number of shares covered by such request equals or exceeds
250,000 shares, the Company shall use its best efforts to register under the Act
the shares of Common Stock held by the Purchaser requested to be registered in
accordance with the procedures outlined herein. The Company shall only be
required to effect one such demand registration.
Notwithstanding the foregoing, (i) if, after the Purchaser has requested a
registration of the Purchased Shares, the Company shall furnish the Purchaser a
certificate signed by an officer of the Company stating that in the good faith
judgment of the Company it would have a materially adverse impact on the
business of the Company and be materially adverse to its shareholders for such
registration statement to be filed and it is therefor essential to defer the
filing of such registration statement, the Company shall have the right to defer
such filing for a period of not more than 120 days from the date of the initial
request and (ii) the Purchaser shall not be allowed to exercise its registration
rights within 180 days from the date that the Company has registered any shares
of Common Stock or any securities similar to Common Stock for its own or others'
account under the Act (other than a registration statement on Form S-4 or S-8 or
any substitute form that may be adopted by the Securities and Exchange
Commission (the "Commission")).
SECTION 6.02. PIGGYBACK REGISTRATION RIGHTS.
(a) Whenever, at any time after the expiration or waiver of the Put Option,
the Company proposes to register any shares of Common Stock for its own or
others' account under the Act, other than a registration solely relating to
employee benefit plans or a registration solely relating to shares to be sold
under Rule 145 under the Act, the Company shall give the Purchaser prompt
written notice of its intent to do so no less than 30 days before the filing of
any registration statement. Upon the written request of the Purchaser given
within 15 days after receipt of such notice, the Company shall, subject to
Section 6.02(b), cause to be included in such registration all of the Purchased
Shares specified in such written request.
(b) If the Company is advised in writing in good faith by any managing
underwriter of the securities being offered pursuant to any registration
statement under this Section 6.02 that, because of marketing considerations, the
number of shares of Common Stock to be sold by persons other than the Company is
greater than the number of such shares which can be offered without materially
and adversely affecting the offering, the Company may reduce PRO RATA the number
of shares offered for the accounts of such persons (based upon the number of
shares requested by each such person to be included in the registration)
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to a number deemed sufficient by such managing underwriter to eliminate the
material and adverse effect.
SECTION 6.03. SELECTION OF UNDERWRITER. If the Company so requires, or if
the Purchaser so elects, the offering of shares of Common Stock held by the
Purchaser shall be in the form of a firm commitment underwritten offering. In
such event, the Company shall select the book-running and other managing
underwriters in connection with such offering and any additional investment
bankers and managers to be used in connection with such offering.
SECTION 6.04. REGISTRATION PROCEDURES. If the Company is required by the
provisions of this Agreement to use its best efforts to effect the registration
of any shares of Common Stock under the Act, the Company shall:
(i) as expeditiously as reasonably possible file with the Commission a
registration statement, in form and substance required by the Act, with respect
to such Common Stock and use its best efforts to cause that registration
statement to become effective;
(ii) as expeditiously as reasonably possible, prepare and file with
the Commission any amendments and supplements to the registration statement and
the prospectus included in the registration statement as may be necessary to
keep the registration statement effective, in the case of a firm commitment
underwritten public offering, until completion of the distribution of all
securities described therein and, in the case of any other offering, until the
earlier of the sale of all Common Stock covered thereby or 120 days after the
effective date thereof;
(iii) as expeditiously as reasonably possible, furnish to the
Purchaser, such reasonable number of copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein) and the prospectus included in
such registration statement, including each preliminary prospectus, in
conformity with the requirements of the Act, and such other documents as the
Purchaser may reasonably request in order to facilitate the public sale or other
disposition of the Common Stock owned by the Purchaser;
(iv) as expeditiously as reasonably possible, use its best efforts to
register or qualify the Common Stock covered by the registration statement for
offer and sale under the securities or blue sky laws of such jurisdictions in
the United States as the Purchaser shall reasonably request, and do any and all
other acts and things that may be necessary or desirable to enable the Purchaser
to consummate the public sale or other disposition in such jurisdictions of the
Common Stock owned by
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the Purchaser; PROVIDED, HOWEVER, that the Company shall not be required in
connection with this paragraph (iv) to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction;
(v) after the filing of the registration statement, promptly notify
the Purchaser of any stop order issued or, to the knowledge of the Company,
threatened to be issued by the Commission and use all commercially reasonable
efforts to prevent the entry of such stop order or to remove it if entered;
(vi) in connection with an underwritten public offering, enter into a
written agreement with the managing underwriter in such form and containing such
provisions as are customary in the securities business for such an arrangement
between such underwriter and companies of the Company's size and investment
stature;
(vii) furnish to each underwriter, if any, and the Purchaser, a legal
opinion of its counsel and a comfort letter from its independent certified
public accountants, each in customary form and substance, at such time or times
as such documents are customarily provided in the type of offering involved;
(viii) as promptly as practicable, notify the Purchaser, at any time
when a prospectus relating to the sale of the Common Stock is required by law to
be delivered in connection with sales by an underwriter or dealer, of the
occurrence of any event requiring the preparation of a supplement or amendment
to such prospectus so that, as thereafter delivered to the purchasers of the
registered Common Stock, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and as promptly as practicable make
available to the Purchaser and to the underwriters any such supplement or
prospectus;
(ix) whenever the Company is registering any Common Stock under the
Act and the Purchaser is selling securities under such registration or
determines that it may be a controlling person under the Act, keep the Purchaser
advised in writing of the initiation, progress and completion of such
registration, allow the Purchaser and the Purchaser's counsel to participate in
the preparation of the registration statement and to have access to all relevant
corporate records, documents and information, include in the registration
statement such information as such holder may reasonably request and take all
such other action as such holder may reasonably request;
(x) as of the effective date of any registration statement relating
thereto, cause all such Common Stock to be
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listed on each securities exchange on which similar securities issued by the
Company are then listed, and, if not so listed, to be listed on the NASDAQ
National Market; and
(xi) as of the effective date of any registration statement relating
thereto, provide a transfer agent and registrar for all such Common Stock.
The Purchaser shall furnish to the Company such information regarding the
Purchaser and the distribution proposed by the Purchaser as the Company may
reasonably request in writing and as shall be required in connection with the
registration, qualification or compliance referred to in this Agreement.
SECTION 6.05. EXPENSES. The Company shall pay all expenses incurred in
complying with this Agreement, including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, transfer taxes, fees
and expenses of counsel and independent certified public accountants for the
Company, state securities and blue sky fees and expenses, and the expense of any
special audits incident to or required by any such registration, but excluding
underwriting discounts and selling commissions relating to the sale of the
Common Stock. The Company shall pay all internal Company expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties) incurred in complying with this
Agreement.
SECTION 6.06. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless the Purchaser from and against any and all losses,
claims, damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus relating to the Common Stock to be registered (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished in writing to the Company by or on behalf of the Purchaser expressly
for use therein.
SECTION 6.07. INDEMNIFICATION BY THE PURCHASER. The Purchaser agrees to
indemnify and hold harmless the Company, its officers and directors, and each
person, if any, who controls the company within the meaning of the Act or the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") to the same
extent as the foregoing indemnity from the Company to the Purchaser, but only
with reference to information furnished in writing by or on behalf of the
Purchaser expressly for use in any registration
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statement or prospectus relating to Common Stock to be registered, or any
amendment or supplement thereto, or any preliminary prospectus.
SECTION 6.08. LOCK-UP AGREEMENT. The Purchaser agrees that in connection
with any public offering of the Company's Common Stock, and upon the request of
the managing underwriter in such offering, the Purchaser will not sell, grant
any option for the purchase of, or otherwise dispose of any of the Company's
securities held by the Purchaser (other than those included in such
registration) without the prior written consent of such underwriter, for such
period of time as may be requested by such underwriter (not to exceed 90 days
after the effective date of such registration).
SECTION 6.09. ASSIGNMENT. The rights of the Purchaser to cause the Company
to register shares pursuant to this Agreement shall not be assignable or
transferable to any other person or entity without the Company's prior written
consent; PROVIDED, HOWEVER, that the terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective executors,
administrators, heirs, successors and permitted assigns of each of the
Purchaser.
ARTICLE VII. MISCELLANEOUS
SECTION 7.01. NOTICES. All notices to a party hereunder shall be in writing
and shall be deemed to have been adequately given if delivered in person, by
facsimile transmission with receipt acknowledged or by delivery by a recognized
courier for overnight delivery, or mailed, certified mail, return receipt
requested, to such party at its address set forth on below (or such other
address as it may from time to time designate in writing to the other parties
hereto).
If to the Company:
Cyrk, Inc.
0 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
Xxxxxx, Hall & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Cameron Read, Esq.
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If to the Purchaser:
Xx Xxxxxx
000 Xxxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
SECTION 7.02. GENERAL INDEMNIFICATION. If any representation or warranty
contained in Article III or Article IV or in any certificate delivered at or
prior to the Closing is not correct in any respect, the party which gave that
representation or warranty will indemnify the other party against, and will hold
the other party harmless from, all liabilities, costs and expenses, including
legal and accounting fees and disbursements and costs of settlements or
judgments, which the other party suffers because the facts were not as
represented or warranted, so that the indemnified party will be in the same
position in which it would have been if the facts had been as represented or
warranted.
SECTION 7.03. NO WAIVER. No failure to exercise and no delay in exercising,
on the part of the Company or the Purchaser, any right, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided are cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 7.04. AMENDMENTS. This Agreement may be amended only by a document
in writing signed by the Purchaser and Company.
SECTION 7.05. SURVIVAL OF AGREEMENTS, ETC. All agreements, representations
and warranties contained herein or made in writing by or on behalf of the
Company and the Purchaser in connection with the transactions contemplated
hereby shall survive the execution and delivery of this Agreement, the Closing
and any investigation at any time made by or on behalf of the Purchaser, except
that the representations and warranties contained herein shall survive the
closing only for a period of one year. All statements contained in any
certificate or other instrument delivered by or on behalf of the Company or the
Purchaser pursuant hereto or in connection with the transactions contemplated
hereby shall be deemed representations and warranties by the Company or the
Purchaser, as the case may be.
SECTION 7.06. CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the internal laws of The Commonwealth of
Massachusetts (without regard for its conflicts of laws principles), except for
those matters governed by the General Corporation Law of the State of Delaware,
and
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decisional law relating thereto, which shall be governed by the laws of the
State of Delaware,
SECTION 7.07. ENTIRE AGREEMENT. This document, together with the documents
and agreements to be delivered as provided in this Agreement, contain the entire
agreement between Company and the Purchaser regarding the subject matter of this
Agreement and those other documents. All prior negotiations, understandings and
agreements between Company and the Purchaser are superseded by this Agreement,
and there are no representations, warranties, understandings or agreements
concerning the transactions which are the subject of this Agreement, other than
those expressly set forth in this Agreement and in the documents and instruments
expressly contemplated by this Agreement.
SECTION 7.08. EFFECT OF HEADINGS. The Article and Section headings are for
reference only, and do not affect the meaning or interpretation of this
Agreement.
SECTION 7.09. PROHIBITION AGAINST ASSIGNMENT. Neither this Agreement nor
any right of any party under it may be assigned by any party hereto without the
consent of the other party and any purported assignment in violation hereof
shall be null and void.
SECTION 7.10. REPRESENTATIONS REGARDING BROKERS. Each party to this
Agreement represents and warrants to each other party that no one acted as a
broker, a finder or in any similar capacity in connection with the transactions
which are the subject of this Agreement. Each party to this Agreement
indemnifies the other party against, and agrees to hold the other party harmless
from, all liabilities and expenses (including reasonable attorneys fees) in
connection with any claim by anyone for compensation as a broker, a finder or in
any similar capacity by reason of services allegedly rendered to the
indemnifying party in connection with the transactions which are the subject of
this Agreement.
SECTION 7.11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and with counterpart signature pages, and all such counterparts
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as sealed instrument as of the date first above written.
CYRK, INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xx Xxxxxx
----------------------- ----------------------------
Name: Xx Xxxxxx
Title:
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Execution Copy
THE SECURITIES REPRESENTED BY THIS WARRANT (AND THE SECURITIES
ISSUABLE UPON EXERCISE OF THIS WARRANT) HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES STATUTE. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT (I) AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF
1933 AND ANY APPLICABLE STATE SECURITIES STATUTE, OR (II) AN OPINION
OF COUNSEL FOR The HOLDER, REASONABLY SATISFACTORY TO THE COMPANY,
THAT SUCH REGISTRATION IS NOT REQUIRED.
Shares Issuable 100,000 shares of the Common Stock
of Cyrk, Inc., a Delaware
corporation
WARRANT TO PURCHASE
SHARES OF COMMON STOCK
Expires February 12, 2003
THIS CERTIFIES THAT, for value received, Xx Xxxxxx ("Purchaser"), is entitled to
purchase up to 100,000 shares (as adjusted pursuant to the provisions hereof)
(the "Shares-) of the fully paid and nonassessable Common Stock, $.01 par value
(the "Common Stock") of Cyrk, Inc., a Delaware corporation (the "Company"), for
a price per share equal to $10.25 or the adjusted price per share determined in
accordance with Section 4 of this Warrant (the "Warrant Price"), subject to the
provisions and upon the terms and conditions hereinafter set forth. As used
herein, the term "warrant Shares" shall mean the Company's presently authorized
Common Stock, or any stock into or for which such Common Stock shall have been
or may hereafter be converted or exchanged company as pursuant from time
t(degree) to the such Certificate of Incorporation (hereinafter the "Certificate
of Incorporation"), and the term "Grant Date" shall mean February 12, 1998.
1. TERM. Subject to the provisions of this Warrant, the purchase right
represented by this Warrant is exercisable, in whole or in part, at any time and
from time To time from and after the Grant Date and prior to February 12, 2003.
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2. METHOD OF EXERCISE.
2.1. STANDARD METHOD. The purchase right represented by this Warrant may be
exercised by the holder hereof, in whole or in part and from time to time by the
surrender of this Warrant (with the notice of exercise form attached hereto as
Exhibit A duly executed) at the principal office of the Company and by the
payment to the Company, by certified or bank check or by wire transfer, of an
amount equal to the then applicable Warrant Price per share multiplied by the
number of Warrant Shares then being purchased. The person or persons in whose
name (s) any certificate(s) representing Warrant Shares shall be issuable upon
exercise of this Warrant shall be deemed to have become the holder(s) of record
of, and shall be treated for all purposes as the record holder(s) of, the shares
represented thereby (and such shares shall be deemed to have been issued)
immediately prior to the close of business on the date or dates upon which this
Warrant is exercised and the then applicable Warrant Price paid. In the event of
any exercise of the rights represented by this Warrant, certificates for the
shares of stock so purchased shall be delivered to the holder hereof as soon as
possible and in any event within thirty days of receipt of such notice and
payment of the then applicable Warrant Price and, unless this Warrant has been
fully exercised or expired, a new Warrant representing the portion of the
warrant Shares, if any, with respect to which this Warrant shall not then have
been exercised shall also be issued to the holder hereof as soon as possible and
in any event within such thirty-day period.
2.2 NET ISSUE EXERCISE.
(a) In lieu of exercising this Warrant, the Holder may elect to
receive shares equal to the value of this Warrant (or the portion thereof being
exercised) by surrender of this Warrant at the principal office of the Company
together with notice of such election in which event the Company shall issue to
Holder a number of shares of the Company's Common Stock computed using the
following formula:
Y (A-B)
X= -------
A
Where
X = the number of shares of Common Stock to be issued to the
Molder.
Y = the number of shares of Common Stock purchasable under
this Warrant or portion thereof being exercised.
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A = the fair market value of one share of the Company's
Common Stock.
B = the Warrant Price (as adjusted to the date of such
calculations).
(b) For purposes of this Section, fair market value of one share of the
Company's Common Stock shall be based on the average of the closing bid and
asked prices of the Company's Common Stock as reported by the Nasdaq National
Market for the twenty trading days prior to the date of determination of fair
market value.
3. STOCK FULLY PAID; RESERVATION OF SHARES. All Warrant Shares that may be
issued upon the exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issue thereof. During the period within which the
rights represented by the Warrant may be exercised, the Company will at all
times have authorized and reserved for the purpose of issuance upon exercise of
the purchase rights evidenced by this Warrant, a sufficient number of Warrant
Shares warrant to provide for the exercise of the right represented by this
4. ADJUSTMENT OF WARRANT PRICE AND NUMBER OF SHARES. The number and kind of
securities purchasable upon the exercise of the Warrant and the Warrant Price
shall be determined, and shall be subject to adjustment from time to time upon
the occurrence of certain events, as follows:
4.1 RECLASSIFICATION OR MERGER. In case of any reclassification,
change or conversion of securities of the class issuable upon exercise of this
Warrant (other than a change in pay value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or combination),
or in case of any merger of the Company with or into another corporation (other
than a merger with another corporation in which the Company is a continuing
corporation and which does not result in any reclassification or change of
outstanding securities issuable upon exercise of this Warrant), or in case of
any sale of all or substantially all of the assets of the Company, the Company,
or such successor or purchasing corporation, as the case may be, shall execute a
new Warrant (in form and substance satisfactory to the holder of this Warrant)
providing that the holder of this Warrant shall have the right to exercise such
new Warrant and upon such exercise to receive, in lieu of each share of Common
Stock therefore issuable upon exercise of this Warrant, the kind and amount of
shares of stock, other securities, money and property receivable upon such
reclassification, change or merger by a holder of one share of Common Stock.
Such new Warrant shall provide for adjustments
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that shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Paragraph 4. The provisions of this Section 4.1 shall
similarly apply to successive reclassification, changes, mergers and transfers.
4.2 SUBDIVISIONS OR COMBINATION OF SHARES. If the Company at any time
while this Warrant remains outstanding and unexpired shall subdivide or combine
its Common Stock, the Warrant Price shall be proportionately adjusted.
4.3 STOCK DIVIDENDS. If the Company at any time while this Warrant is
outstanding and unexpired shall pay a dividend payable in shares of Common Stock
(except any distribution specifically provided for in the foregoing Sections 4.1
and 4.2), then the warrant Price shall be adjusted, from and after the date of
determination of shareholders entitled to receive such dividend or distribution,
to that price determined by multiplying the Warrant Price in effect immediately
prior to such date of determination by a fraction (a) the numerator of which
shall be the total number of shares of Common Stock outstanding immediately
prior to such dividend or distribution (assuming the conversion, exchange or
exercise of all securities convertible into, exchangeable for or exercisable for
Common Stock), and (b) the denominator of which shall be the total number of
shares of Common Stock outstanding immediately after such dividend or
distribution (assuming the conversion, exchange or exercise of all securities
convertible into, exchangeable for or exercisable for Common Stock).
4.4 NO IMPAIRMENT. The Company will not, by amendment of its
Certificate of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms to be observed or performed hereunder by the
Company, but will at all times in good faith assist in the carrying out of all
the provisions of this Article 4 and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the holder of this
Warrant against impairment.
5. NOTICE OF ADJUSTMENTS. Whenever the Warrant Price or number of Warrant
Shares shall be adjusted pursuant to the provisions hereof, the Company shall
within thirty (30) days of such adjustment deliver a certificate signed by its
chief financial officer to the registered holder(s) hereof setting forth, in
reasonable detail, the event requiring the adjustment, the amount of the
adjustment, the method by which such adjustment was calculated, and the Warrant
Price after giving effect to such adjustment.
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6. FRACTIONAL SHARES. No fractional Warrant Shares will be issued in
connection with any exercise hereunder, but in lieu of such fractional shares
the Company shall make a cash payment therefor upon the basis of the Warrant
Price then in effect.
7. COMPLIANCE WITH SECURITIES ACT; DISPOSITION OF WARRANT OR WARRANT
SHARES.
7.1 COMPLIANCE WITH SECURITIES ACT. The holder of this Warrant, by
acceptance hereof, confirms as to itself the representations made by the holder
in Article IV of the Securities Purchase Agreement dated as of the date hereof
by and among the Purchaser and the Company (the "PURCHASE AGREEMENT") and agrees
to the placement of a restrictive transfer legend on this Warrant and the
certificates representing the Warrant Shares in accordance with the terms
hereof.
7.2 DISPOSITION OF WARRANT AND WARRANT SHARES. With respect to any
offer, sale or other disposition of this Warrant or any Warrant Shares acquired
pursuant to the exercise of this Warrant prior to registration of such Warrant
Shares, the holder hereof and each subsequent holder of this Warrant agrees to
give written notice to the Company thereto, describing briefly the manner
thereof, together with a written opinion of such holder's counsel, if reasonably
requested by the Company (and, in such case, such counsel and opinion must be
reasonably acceptable to the Company), to the effect that such offer, sale or
other disposition may be effected without registration or qualification under
the Securities Act of 1933 (the "Act") as then in effect and/or any other
federal or state law then in effect of this Warrant or such Warrant Shares and
indicating whether or not under the Act certificates for this Warrant or such
Warrant Shares to be sold or otherwise disposed of require any restrictive
legend as to applicable restrictions on transferability in order to insure
compliance with the Act. Each certificate representing this Warrant or the
Warrant Shares thus transferred (except a transfer pursuant to Rule 144) shall
bear a legend as to the applicable restrictions on transferability in order to
insure compliance with the Act, unless in the aforesaid opinion of counsel for
the holder, such legend is not required in order to insure compliance with the
Act.
8. NO RIGHTS AS SHAREHOLDER. No holder of the Warrant, as such, shall be
entitled to vote or receive dividends or be deemed the holder of Warrant Shares
or any other securities of the Company which may at any time be issuable on the
exercise thereof for any purpose, nor shall anything contained herein be
construed to confer upon the holder of this Warrant, as such, any of the rights
of a shareholder of the Company or any right of vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to receive notice of meetings, or to receive dividends or subscription rights
or
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otherwise until this Warrant shall have been exercised and the Warrant Shares
purchasable upon the exercise hereof shall have become deliverable, as provided
herein.
9. REPRESENTATIONS AND WARRANTIES. The Company hereby represents and
warrants that this Warrant is issued and delivered on the basis of the
following:
9.1 AUTHORIZATION AND DELIVERY. This Warrant has been duly authorized
and executed by the Company and when delivered will be the valid and binding
obligation of the Company enforceable in accordance with its terms;
9.2 WARRANT SHARES. The Warrant Shares have been duly authorized and
reserved for issuance by the Company and, when issued and paid for in accordance
with the terms hereof, will be validly issued, fully paid and nonassessable;
9.3 NO INCONSISTENCY. The execution and delivery of this warrant are
not, and the issuance of the Warrant Shares upon exercise of this Warrant in
accordance with the terms hereof will not be, inconsistent with the Company's
Certificate of Incorporation or by-laws, do not and will not contravene any law,
governmental rule or regulation, judgment or order applicable to the Company,
and do not and will not contravene any provision of, or constitute a default
under, any indenture, mortgage, contract or other instrument of which the
Company is a party or by which it is bound or require the consent or approval
of, the giving of notice to, the registration with or the taking of any action
in respect of or by, any Federal, state or local government authority or agency
or other person.
10. MODIFICATION AND WAIVER. This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in writing
signed by the party against which enforcement of the same is sought.
11. NOTICES. Any notice, request or other document required or permitted
to be given or delivered to the holder hereof or the Company shall be delivered
by facsimile where confirmation of receipt by the receiving party's receiver can
be documented, or delivered by hand, or shall be sent by reputable overnight
courier, certified or registered mail, postage prepaid, to each such holder at
its address as shown on the books of the Company or the Company at the address
indicated therefor on the signature page of this Warrant.
12. BINDING EFFECT ON SUCCESSORS. This Warrant shall be binding upon any
corporation succeeding the Company by merger or consolidation, and all of the
obligations of the Company relating to the Warrant Shares issuable upon the
exercise of this Warrant shall be as set forth in the Company's Certificate of
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Incorporation and the Company's by-laws (each as amended from time to time) and
shall survive the exercise and termination of this Warrant and all of the
covenants and agreements herein and in such other documents and instruments of
the Company shall insure to the benefits of the successors and assigns of the
holder hereof.
13. LOST WARRANTS OR STOCK CERTIFICATES. The Company covenants to the
holder hereof that upon receipt of evidence reasonably satisfactory to the
Company of the loss, theft, destruction, or mutilation of this Warrant or any
stock certificate and, in the case of any such loss, theft or destruction, upon
receipt of an indemnity reasonably satisfactory to the Company, or in the case
of any such mutilation upon surrender and cancellation of such Warrant or stock
certificate, the Company will make and deliver a new Warrant or stock
certificate, or like tenor, in lieu of the lost, stolen, destroyed or mutilated
Warrant or stock certificate.
14. DESCRIPTIVE HEADINGS. The descriptive headings of the several
paragraphs of this Warrant are inserted for convenience only and do not
constitute a part of this Warrant.
15. GOVERNING LAW. This Warrant shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Delaware.
CYRK, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Address: 00 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Date: February 12 1998
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EXHIBIT A
NOTICE OF EXERCISE
To:
1. The undersigned hereby elects to purchase ___ shares of Common Stock
of Cyrk, Inc. pursuant to the terms of the attached Warrant, and tenders
herewith payment of the purchase price of such shares in full.
2. Please issue a certificate or certificates representing said shares in
the name of the undersigned or, subject to compliance with the restrictions on
transfer set forth in Section 7 of the Warrant, in such other name or names as
are specified below:
--------------------------
(Name)
--------------------------
--------------------------
--------------------------
(Address)
3. The undersigned represents that the aforesaid shares being acquired
for the account of the undersigned for investment and not with a view to, or for
resale in connection with, the distribution thereof and that the undersigned has
no present intention of distributing or reselling such shares.
------------------------------------------
Signature
---------------------------------
Date
8
