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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 Xxxxx X. Xxxxx ("XXXXX") and
Xxxxxx Foo ("OPTIONEE"). Xxxxx 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. Xxxxx 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 Xxxxx. 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 Xxxxx. The written notice shall be accompanied by payment of
the exercise price. This Option shall be deemed exercised upon receipt by Xxxxx
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.
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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 Xxxxx.
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, Xxxxx may require
Optionee to make any representation and warranty to Xxxxx as may be necessary or
appropriate, in Xxxxx'x 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 Xxxxx, 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.
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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, Xxxxx 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
Xxxxx), Xxxxx, 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 Xxxxx, 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.
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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 Xxxxx: Xxxxx X. Xxxxx
c/o Simon Marketing
1900 Avenue of the Stars
0xx Xxxxx
Xxx Xxxxxxx, Xx 00000
with a copy to: Irell & Xxxxxxx, LLP
0000 Xxxxxx xx xxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Esq.
If to Optionee: Xxxxxx Foo
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Exhibit 99.3
DATE OF GRANT: AUGUST 31, 1999
"XXXXX"
xxxxx X. Xxxxx
By:
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Xxxxx X. Xxxxx
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
Xxxxx upon any questions arising under the Option Agreement.
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Xxxxxx 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.
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(the "SPOUSE")
