<PAGE> 1
As filed with the Securities and Exchange Commission on February 5, 1998
REGISTRATION NO. 333- ________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CYRK, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 04-3081657
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
</TABLE>
3 Pond Road
Gloucester, MA 01930
(Address of Principal Executive Offices) (Zip Code)
1993 OMNIBUS STOCK PLAN
1993 EMPLOYEE STOCK PURCHASE PLAN
1997 ACQUISITION STOCK PLAN
(Full title of the plans)
Patricia J. Landgren, Esq.
General Counsel
3 Pond Road
Gloucester, MA 01930
(Name and address of agent for service)
(978) 283-5800
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (1) PRICE PER SHARE OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C>
Common Stock 12,500 $10.063(2) $ 125,788 $ 37.11
5,000 10.750(2) 53,750 15.86
21,431 10.800(2) 231,455 68.28
236,769 10.869(2) 2,573,442 759.17
35,000 10.870(2) 380,450 112.23
27,049 10.875(2) 294,158 86.78
5,000 11.250(2) 56,250 16.59
50,000 11.750(2) 587,500 173.31
1,000 12.875(2) 12,875 3.80
148,200 14.295(2) 2,118,519 624.96
1,608,051 10.000(3) 16,080,510 4,743.75
--------- ----------- ---------
2,150,000 $22,514,697 $6,641.84
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to
the plans in the event of a stock dividend, split-up of shares,
recapitalization or other similar change in the Common Stock.
(2) This estimate is made pursuant to Rule 457(h)(1) under the Securities
Act of 1933, as amended (the "Securities Act"), solely for the purposes
of determining the registration fee and is based upon the price at
which outstanding options may be exercised.
(3) This estimate is made pursuant to Rule 457(c) and (h)(1) under the
Securities Act solely for the purpose of determining the amount of the
registration fee. The registration fee is based upon the average of the
high and low prices of the Common Stock as reported on the NASDAQ
National Market System on February 3, 1998.
<PAGE> 2
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8, as amended, and relates to an additional 2,150,000
shares of Common Stock, $.01 par value, of Cyrk, Inc. (the "Company") which have
been reserved for issuance under the Company's 1993 Omnibus Stock Plan
(1,000,000 shares), 1993 Employee Stock Purchase Plan (150,000 shares), and 1997
Acquisition Stock Plan (1,000,000 shares). The Company previously filed with the
Securities and Exchange Commission (the "Commission") on February 14, 1994, a
Registration Statement on Form S-8 (File No. 33-75194), covering an aggregate of
825,000 shares of the Company's Common Stock, including 525,000 shares then
reserved for issuance under the Company's 1993 Omnibus Stock Plan and 150,000
shares then reserved for issuance under the Company's 1993 Employee Stock
Purchase Plan; and on February 15, 1995, a Registration Statement on Form S-8
(File No. 33-89534), covering 1,475,000 shares of the Company's Common Stock,
representing an increase in the number of shares then reserved for issuance
under the Company's 1993 Omnibus Stock Plan.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Company's 1996 Annual Report to Stockholders filed with
the Commission on March 31, 1997, containing the Company's
audited financial statements for its fiscal year ending
December 31, 1996;
(b) The Company's Quarterly Reports on Form 10-Q for the three
month periods ended March 31, 1997, June 30, 1997 and
September 30, 1997 filed with the Commission;
(c) The Company's Reports on Form 8-K filed with the Commission on
April 22, 1997, May 8, 1997 and June 24, 1997, and the
Company's Report of Form 8-K/A filed with the Commission on
July 23, 1997;
(d) The description of the Company's Common Stock incorporated by
reference into the Company's registration statement on Form
8-A filed with the Commission on June 4, 1993 from the
Company's registration statement on Form S-1 (SEC File No.
33-63118) initially filed with the Commission on May 20, 1993;
and
(e) All other reports filed with the Commission by the Company
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), since May 20,
1993.
In addition, all documents filed by the Company after the initial
filing date of this registration statement pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act and prior to the filing of a
post-effective amendment which indicates that all shares registered
hereunder have been sold or which deregisters all shares then remaining
unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing
of such documents.
II-1
<PAGE> 4
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation may indemnify a director, officer, employee
or agent against expenses (including attorneys' fees), judgments, fines
and for amounts paid in settlement in respect of or in successful
defense of any action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the
best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Article VIII of the Company's Restated Certificate of Incorporation
provides that no director of the Company shall be personally liable to
the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal
benefit. Article VIII further provides that a director's personal
liability shall be eliminated or limited in the future to the fullest
extent permitted from time to time by the Delaware General Corporation
Law.
Article IX of the Company's Restated Certificate of Incorporation
provides that the Company shall, to the fullest extent permitted from
time to time under the Delaware General Corporation Law, indemnify each
of its directors and officers against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement in
respect of any action, suit or proceeding in which such director or
officer may be involved or with which he may be threatened, while in
office or thereafter, by reason of his or her actions or omissions in
connection with services rendered directly or indirectly to the Company
during his or her term of office, such indemnification to include
prompt payment of expenses in advance of the final disposition of any
such action, suit or proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
5.1 Opinion of Choate, Hall & Stewart as to the legality of the
shares being registered.
*10.2 The Company's Employee Stock Purchase Plan, as amended.
@10.3 The Company's 1993 Omnibus Stock Plan, as amended.
10.35 The Company's 1997 Acquisition Stock Plan.
II-2
<PAGE> 5
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
24.1 Power of Attorney (included in page II-5).
* Filed as an exhibit to the Company's Registration Statement on Form S-1
(Registration No. 33-63118) or an amendment thereto and incorporated
herein by reference.
@ Filed as an exhibit to the Annual Report on Form 10-K for the year
ended December 31, 1994 and incorporated herein by reference.
ITEM 9. UNDERTAKINGS
(a) The Company hereby undertakes:
(1) to file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement to include any material
information with respect to the plan of distribution
not previously disclosed in the registration
statement or any material change to such information
in the registration statement;
(2) that, for the purpose of determining any liability
under the Securities Act of 1933, as amended (the
"Securities Act"), each such post-effective amendment
shall be deemed to be a new registration statement
relating to the securities offered therein, and the
offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof;
and
(3) to remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each
filing of the Company's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a
director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Company
will, unless in the opinion of counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Gloucester, The Commonwealth of Massachusetts on
January 30, 1998.
CYRK, INC.
(Issuer and Employer)
By: /S/ PATRICK D. BRADY
-------------------------------------
Patrick D. Brady
President and Chief Operating Officer
II-4
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears
below constitutes and appoints Patrick D. Brady, Gregory P. Shlopak and Patricia
J. Landgren, jointly and severally, his true and lawful attorneys-in-fact and
agents with full powers of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
NAME TITLE/CAPACITY DATE
<S> <C> <C>
/S/ GREGORY P. SHLOPAK
-------------------------------
Gregory P. Shlopak Chairman of the Board January 30, 1998
Chief Executive Officer
Director (principal
executive officer)
/S/ PATRICK D. BRADY
-------------------------------
Patrick D. Brady President January 30, 1998
Chief Operating Officer
Director
/S/ JOSEPH W. BARTLETT
-------------------------------
Joseph W. Bartlett Director January 30, 1998
/S/ J. ANTHONY KOUBA
-------------------------------
J. Anthony Kouba Director January 30, 1998
/S/ LOUIS MARK, JR.
-------------------------------
Louis Marx, Jr. Director January 30, 1998
/S/ DOMINIC F. MAMMOLA
-------------------------------
Dominic F. Mammola Vice President and Chief February 4, 1998
Financial Officer
</TABLE>
II-5
<PAGE> 8
INDEX TO EXHIBITS
NUMBER EXHIBIT
5.1 Opinion of Choate, Hall & Stewart as to the legality of the
shares being registered.
*10.2 The Company's Employee Stock Purchase Plan, as amended.
@10.3 The Company's 1993 Omnibus Stock Plan, as amended.
10.35 The Company's 1997 Acquisition Stock Plan.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
24.1 Power of Attorney (included in page II-5).
* Filed as an exhibit to the Company's Registration Statement on Form S-1
(Registration No. 33-63118) or an amendment thereto and incorporated
herein by reference.
@ Filed as an exhibit to the Annual Report on Form 10-K for the year
ended December 31, 1994 and incorporated herein by reference.
II-6
<PAGE> 1
Exhibit 5.1
-----------
CHOATE, HALL & STEWART
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
EXCHANGE PLACE
53 STATE STREET
BOSTON, MASSACHUSETTS 02109-2891
TELEPHONE (617) 248-5000
FACSIMILE (617) 248-4000
TELEX 49615860
February 4, 1998
Cyrk, Inc.
3 Pond Road
Gloucester, MA 01930
Ladies and Gentlemen:
This opinion is delivered to you in connection with the registration
statement on Form S-8 (the "Registration Statement") to be filed on February 5,
1998 by Cyrk, Inc. (the "Company") under the Securities Act of 1933, as amended,
for registration under said Act of 2,150,000 shares of common stock, $.01 par
value (the "Common Stock"), of the Company to be issued by the Company from time
to time under the Company's 1993 Omnibus Stock Plan, 1993 Employee Stock
Purchase Plan and 1997 Acquisition Stock Plan (the "Plans").
We are familiar with the Company's Restated Certificate of
Incorporation, as amended, its Amended and Restated By-Laws, as amended, and
relevant resolutions of the Company's Board of Directors and Shareholders, as
well as the Registration Statement and the Plans. We have also examined such
other documents, records and certificates and made such further investigation as
we have deemed necessary for the purposes of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock to be sold by the Company under the Plans, as in effect
on the date hereof, when issued against receipt of the agreed purchase price
therefor in accordance with the terms of the Plans, will be legally issued,
fully paid and nonassessable.
We understand that this opinion is to be used in connection with the
Registration Statement and consent to the filing of this opinion as an exhibit
to the Registration Statement and to all references to this firm included
therein.
Very truly yours,
/s/ CHOATE, HALL & STEWART
CHOATE, HALL & STEWART
<PAGE> 1
Exhibit 10.35
-------------
CYRK, INC.
1997 ACQUISITION STOCK PLAN
--------------
1. PURPOSE. This Cyrk, Inc. 1997 Acquisition Stock Plan (the
"Plan") is intended to provide incentives in conjunction with the acquisition of
additional businesses and lines of business by Cyrk, Inc. (a) to the officers
and other employees of Cyrk, Inc. (the "Company"), its parent (if any) and any
present or future subsidiaries of the Company (collectively, "Related
Corporations") by providing them with opportunities to purchase stock in the
Company pursuant to options which qualify as "incentive stock options" under
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"),
granted hereunder ("ISO" or "ISOs"); (b) to directors, officers, employees and
consultants of the Company and Related Corporations by providing them with
opportunities to purchase stock in the Company pursuant to options granted
hereunder which do not qualify as ISOs ("Non-Qualified Option" or "Non-Qualified
Options"); and (c) to directors, officers, employees and consultants of the
Company and Related Corporations by providing them with opportunities to make
direct purchases of restricted stock in the Company ("Restricted Stock"). Both
ISOs and Non-Qualified Options are referred to hereafter individually as an
"Option" and collectively as "Options." As used herein, the terms "parent" and
"subsidiary" mean "parent corporation" and "subsidiary corporation" as those
terms are defined in Section 425 of the Code.
2. ADMINISTRATION OF THE PLAN. (a) The Plan shall be administered
by the Board of Directors of the Company (the "Board"). The Board may appoint a
Compensation Committee (the "Committee") of two or more of its members to
administer this Plan. In the event the Company registers any class of any equity
security pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), each member of the Committee shall be a
"Non-Employee Director" as defined in Rule 16b-3 under the Exchange Act. Subject
to ratification of the grant of each Option or Restricted Stock by the Board (if
so required by applicable state law), and subject to the terms of the Plan, the
Committee, if so appointed, shall have the authority to (i) determine the
employees of the Company and Related Corporations (from among the class of
employees eligible under paragraph 3 to receive ISOs) to whom ISOs may be
granted, and to determine (from among the class of individuals and entities
eligible under paragraph 3 to receive Non-Qualified Options and Restricted
Stock) to whom Non-Qualified Options or Restricted Stock may be granted; (ii)
determine the time or times at which Options or Restricted Stock may be granted;
(iii) determine the option price of shares subject to each Option, which price
with respect to ISOs shall not be less than the minimum specified in paragraph
7, and the purchase price of Restricted Stock; (iv) determine whether each
Option granted shall be an ISO or a Non-Qualified Option; (v) determine (subject
to paragraph 8) the
<PAGE> 2
time or times when each Option shall become exercisable and the duration of the
exercise period; (vi) determine whether restrictions such as repurchase options
are to be imposed on shares subject to Options and to Restricted Stock, and the
nature of such restrictions, if any; and (vii) interpret the Plan and prescribe
and rescind rules and regulations relating to it. If the Committee determines to
issue a Non-Qualified Option, it shall take whatever actions it deems necessary,
under Section 422 of the Code and the regulations promulgated thereunder, to
ensure that such Option is not treated as an ISO. The interpretation and
construction by the Committee of any provisions of the Plan or of any Option or
authorization or agreement for Restricted Stock granted under it shall be final
unless otherwise determined by the Board. The Committee may from time to time
adopt such rules and regulations for carrying out the Plan as it may deem best.
No member of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option or
Restricted Stock granted under it.
(b) The Committee may select one of its members as its
chairman, and shall hold meetings at such time and places as it may determine.
Acts by a majority of the Committee, or acts reduced to or approved in writing
by a majority of the members of the Committee, shall be the valid acts of the
Committee. All references in this Plan to the Committee shall mean the Board if
there is no Committee so appointed. From time to time the Board may increase the
size of the Committee and appoint additional members thereof, remove members
(with or without cause), and appoint new members in substitution therefor, fill
vacancies however caused, or remove all members of the Committee and thereafter
directly administer the Plan.
3. ELIGIBLE EMPLOYEES AND OTHERS. ISOs may be granted to any
officer or other employee of the Company or any Related Corporation. Those
directors of the Company who are not employees may not be granted ISOs under the
Plan. Non-Qualified Options and Restricted Stock may be granted to any director
(whether or not an employee), officer, employee or consultant of the Company or
any Related Corporation. The Committee may take into consideration an optionee's
individual circumstances in determining whether to grant an ISO or a
Non-Qualified Option or Restricted Stock. Granting of any Option or Restricted
Stock to any individual or entity shall neither entitle that individual or
entity to, nor disqualify him from, participation in any other grant of Options
or Restricted Stock.
4. STOCK. The stock subject to Options and Restricted Stock shall
be authorized but unissued shares of Common Stock of the Company, par value $.01
per share (the "Common Stock"), or shares of Common Stock re-acquired by the
Company in any manner. The aggregate number of shares which may be issued
pursuant to the Plan is 1,000,000, subject to adjustment as provided in
paragraph 14. Any such shares may be issued as ISOs, Non-Qualified Options or
Restricted Stock so long as the aggregate number of shares so issued does not
exceed such number, as adjusted. If any Option granted under the Plan shall
expire or terminate for any reason without having been exercised in full or
shall cease for any reason to be exercisable in whole or in part, or if any
Restricted Stock shall be reacquired by the Company by exercise of its
repurchase option, the shares subject to such expired or terminated Option and
reacquired
-2-
<PAGE> 3
shares of Restricted Stock shall again be available for grants of Options or
Restricted Stock under the Plan.
5. INDIVIDUAL PARTICIPANT LIMITATION. Any other provision of this
Plan notwithstanding, the number of shares of Common Stock for which Options may
be granted in any single fiscal year of the Company to any participant shall not
exceed 500,000 shares (the "Individual Limit"). For purposes of the foregoing
limitation, if any Option is cancelled, the cancelled Option shall continue to
be counted against the Individual Limit; if after grant the exercise price of an
Option is modified, the transaction shall be treated as the cancellation of the
Option and the grant of a new Option. In any such case, both the Option that is
cancelled and the Option deemed to be granted shall be counted against the
Individual Limit.
6. GRANTS UNDER THE PLAN. Options or Restricted Stock may be
granted under the Plan at any time on or after April 4, 1997 and prior to April
4, 2007. Any such grants of ISOs shall be subject to the receipt, within 12
months of April 4, 1997, of the approval of the stockholders of the Company as
provided in paragraph 18. The date of grant of an Option under the Plan will be
the date specified by the Committee at the time it awards the Option; provided,
however, that such date shall not be prior to the date of award. The Committee
shall have the right, with the consent of the optionee, to convert an ISO
granted under the Plan to a Non-Qualified Option pursuant to paragraph 16.
7. MINIMUM OPTION PRICE: ISO LIMITATIONS. (a) The price per share
specified in the agreement relating to each ISO granted under the Plan shall not
be less than the fair market value per share of Common Stock on the date of such
grant. In the case of an ISO to be granted to an employee owning stock
possessing more than ten percent of the total combined voting power of all
classes of stock of the Company or any Related Corporation, the price per share
specified in the agreement relating to such ISO shall not be less than 110
percent of the fair market value of Common Stock on the date of grant.
(b) In no event shall the aggregate fair market value
(determined at the time the option is granted) of Common Stock for which ISOs
granted to any employee are exercisable for the first time by such employee
during any calendar year (under all stock option plans of the Company and any
Related Corporation) exceed $100,000.
(c) If, at the time an Option is granted under the Plan, the
Company's Common Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such Option is granted and
shall mean (i) the average (on that date) of the high and low prices of the
Common Stock on the principal national securities exchange on which the Common
Stock is traded, if such stock is then traded on a national securities exchange;
or (ii) the last reported sale price (on that date) of the Common Stock on the
NASDAQ National Market System, if the
-3-
<PAGE> 4
Common Stock is not then traded on a national securities exchange; or (iii) the
closing bid price (or average of bid prices) last quoted (on that date) by an
established quotation service for over-the-counter securities, if the Common
Stock is not reported on the NASDAQ National Market System or on a national
securities exchange. However, if the Common Stock is not publicly traded at the
time an Option is granted under the Plan, "fair market value" shall be deemed to
be the fair value of the Common Stock as determined by the Committee after
taking into consideration all factors which it deems appropriate, including,
without limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
8. OPTION DURATION. Subject to earlier termination as provided in
paragraphs 10 and 11, each Option shall expire on the date specified by the
Committee, but not more than ten years from the date of grant and in the case of
ISOs granted to an employee owning stock possessing more than ten percent of the
total combined voting power of all classes of stock of the Company or any
Related Corporation, not more than five years from date of grant. Subject to
earlier termination as provided in paragraphs 10 and 11, the term of each ISO
shall be the term set forth in the original instrument granting such ISO, except
with respect to any part of such ISO that is converted into a Non-Qualified
Option pursuant to paragraph 16.
9. EXERCISE OF OPTION. Subject to the provisions of paragraphs 10
through 13, each Option granted under the Plan shall be exercisable as follows:
(a) The Option shall either be fully exercisable on the date
of grant or shall become exercisable thereafter in such installments as the
Committee may specify.
(b) Once an installment becomes exercisable it shall remain
exercisable until expiration or termination of the Option, unless otherwise
specified by the Committee.
(c) Each Option or installment may be exercised at any time or
from time to time, in whole or in part, for up to the total number of shares
with respect to which it is then exercisable.
(d) The Committee shall have the right to accelerate the date
of exercise of any installment; provided that the Committee shall not accelerate
the exercise date of any installment of any Option granted to any employee as an
ISO (and not previously converted into a Non-Qualified Option pursuant to
paragraph 17) if such acceleration would violate the annual vesting limitation
contained in Section 422(d) of the Code which provides generally that the
aggregate fair market value (determined at the time the option is granted) of
the stock with respect to which ISOs granted to any employee are exercisable for
the first time by such employee during any calendar year (under all plans of the
Company and any Related Corporation) shall not exceed $100,000.
-4-
<PAGE> 5
10. TERMINATION OF EMPLOYMENT. If an ISO optionee ceases to be
employed by the Company or any Related Corporation other than by reason of death
or disability as provided in paragraph 11, no further installments of his ISOs
shall become exercisable, and his ISOs shall terminate after the passage of 60
days from the date of termination of his employment, but in no event later than
on their specified expiration dates except to the extent that such ISOs (or
unexercised installments thereof) have been converted into Non-Qualified Options
pursuant to paragraph 16. Leave of absence with the written approval of the
Committee shall not be considered an interruption of employment under the Plan,
provided that such written approval contractually obligates the Company or any
Related Corporation to continue the employment of the employee after the
approved period of absence. Employment shall also be considered as continuing
uninterrupted during any other bona fide leave of absence (such as those
attributable to illness, military obligations or governmental service) provided
that the period of such leave does not exceed 90 days or, if longer, any period
during which such optionee's right to reemployment is guaranteed by statute.
Nothing in the Plan shall be deemed to give any grantee of any Option or
Restricted Stock the right to be retained in employment or other service by the
Company or any Related Corporation for any period of time. ISOs granted under
the Plan shall not be affected by any change of employment within or among the
Company and Related Corporations, so long as the optionee continues to be an
employee of the Company or any Related Corporation. In granting any
Non-Qualified Option, the Committee may specify that such Non-Qualified Option
shall be subject to the restrictions set forth herein with respect to ISOs, or
to such other termination or cancellation provisions as the Committee may
determine.
11. DEATH; DISABILITY; DISSOLUTION. If an optionee ceases to be
employed by the Company and all Related Corporations by reason of his death, any
Option of his may be exercised, to the extent of the number of shares with
respect to which he could have exercised it on the date of his death, by his
estate, personal representative or beneficiary who has acquired the Option by
will or by the laws of descent and distribution, at any time prior to the
earlier of the Option's specified expiration date or 180 days from the date of
the optionee's death.
If an optionee ceases to be employed by the Company and all
Related Corporations by reason of his disability, he shall have the right to
exercise any Option held by him on the date of termination of employment, to the
extent of the number of shares with respect to which he could have exercised it
on that date, at any time prior to the earlier of the Option's specified
expiration date or 180 days from the date of the termination of the optionee's
employment. For the purposes of the Plan, the term "disability" shall have the
meaning assigned to it in Section 22(e)(3) of the Code or any successor statute.
In the case of a partnership, corporation or other entity
holding a Non-Qualified Option, if such entity is dissolved, liquidated, becomes
insolvent or enters into a merger or acquisition with respect to which such
optionee is not the surviving entity, such Option shall terminate immediately.
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12. ASSIGNABILITY. No Option shall be assignable or transferable
by the optionee except by will or by the laws of descent and distribution, and
during the lifetime of the Optionee each Option shall be exercisable only by
him.
13. TERMS AND CONDITIONS OF OPTIONS. Options shall be evidenced by
instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in paragraphs 7 through 12 hereof and may contain such
other provisions as the Committee deems advisable which are not inconsistent
with the Plan, including transfer and repurchase restrictions applicable to
shares of Common Stock issuable upon exercise of Options. The Committee may from
time to time confer authority and responsibility on one or more of its own
members and/or one or more officers of the Company to execute and deliver such
instruments. The proper officers of the Company are authorized and directed to
take any and all action necessary or advisable from time to time to carry out
the terms of such instruments.
14. ADJUSTMENTS. Upon the happening of any of the following
described events, an optionee's rights with respect to Options granted to him
hereunder shall be adjusted as hereinafter provided:
(a) In the event shares of Common Stock shall be sub-divided
or combined into a greater or smaller number of shares or if, upon a merger,
consolidation, reorganization, split-up, liquidation, combination,
recapitalization or the like of the Company, the shares of Common Stock shall be
exchanged for other securities of the Company or of another corporation, each
optionee shall be entitled, subject to the conditions herein stated, to purchase
such number of shares of common stock or amount of other securities of the
Company or such other corporation as were exchangeable for the number of shares
of Common Stock which such optionee would have been entitled to purchase except
for such action, and appropriate adjustments shall be made in the purchase price
per share to reflect such subdivision, combination, or exchange.
(b) In the event the Company shall issue any of its shares as
a stock dividend upon or with respect to the shares of stock of the class which
shall at the time be subject to option hereunder, each optionee upon exercising
an Option shall be entitled to receive (for the purchase price paid upon such
exercise) the shares as to which he is exercising his Option and, in addition
thereto (at no additional cost), such number of shares of the class or classes
in which such stock dividend or dividends were declared or paid, and such amount
of cash in lieu of fractional shares, as he would have received if he had been
the holder of the shares as to which he is exercising his Option at all times
between the date of grant of such Option and the date of its exercise.
(c) Notwithstanding the foregoing, any adjustments made
pursuant to subparagraph (a) or (b) shall be made only after the Committee,
after consulting with counsel for the Company, determines whether such
adjustments with respect to ISOs will constitute a
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"modification" of such ISOs as that term is defined in Section 424(h) of the
Code, or cause any adverse tax consequences for the holders of such ISOs. No
adjustments shall be made for dividends paid in cash or in property other than
securities of the Company.
(d) No fractional shares shall actually be issued under the
Plan. Any fractional shares which, but for this subparagraph (d), would have
been issued to an optionee pursuant to an Option, shall be deemed to have been
issued and immediately sold to the Company for their fair market value, and the
optionee shall receive from the Company cash in lieu of such fractional shares.
(e) Upon the happening of any of the foregoing events
described in subparagraphs (a) or (b) above, the class and aggregate number of
shares set forth in paragraph 4 hereof which are subject to Options which
previously have been or subsequently may be granted under the Plan shall also be
appropriately adjusted to reflect the events specified in such subparagraphs.
The Committee shall determine the specific adjustments to be made under this
paragraph 14, and subject to paragraph 2, its determination shall be conclusive.
15. MEANS OF EXERCISING OPTIONS. An Option (or any part or
installment thereof) shall be exercised by giving written notice to the Company
at its principal office address. Such notice shall identify the Option being
exercised and specify the number of shares as to which such Option is being
exercised, accompanied by full payment of the purchase price therefor either (i)
in United States dollars in cash or by check, or (ii) at the discretion of the
Committee, through delivery of shares of Common Stock having fair market value
equal as of the date of the exercise to the cash exercise price of the Option,
or (iii) at the discretion of the Committee, by delivery of the optionee's
personal recourse note bearing interest payable not less than annually at no
less than 100% of the lowest applicable Federal rate, as defined in Section
1274(d) of the Code, or (iv) at the discretion of the Committee, by any
combination of (i), (ii) and (iii) above. If the Committee exercises its
discretion to permit payment of the exercise price of an ISO by means of the
methods set forth in clauses (ii) or (iii) of the preceding sentence, such
discretion shall be exercised in writing at the time of the grant of the ISO in
question. The holder of an Option shall not have the rights of a shareholder
with respect to the shares covered by his Option until the date of issuance of a
stock certificate to him for such shares. Except as expressly provided above in
paragraph 14 with respect to change in capitalization and stock dividends, no
adjustment shall be made for dividends or similar rights for which the record
date is before the date such stock certificates is issued.
16. CONVERSION OF ISOS INTO NON-QUALIFIED OPTIONS: TERMINATION OF
ISOS. The Committee, at the written request of any optionee, may in its
discretion take such actions as may be necessary to convert such optionee's ISOs
(or any installments or portions of installments thereof) that have not been
exercised on the date of conversion into Non-Qualified Options at any time prior
to the expiration of such ISOs, regardless of whether the optionee is an
employee of the Company or a Related Corporation at the time of such conversion.
Such actions may include,
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but not be limited to, extending the exercise period or reducing the exercise
price of the appropriate installments of such Options. At the time of such
conversion, the Committee (with the consent of the optionee) may impose such
conditions on the exercise of the resulting Non-Qualified Options as the
Committee in its discretion may determine, provided that such conditions shall
not be inconsistent with this Plan. Nothing in the Plan shall be deemed to give
any optionee the right to have such optionee's ISOs converted into Non-Qualified
Options, and no such conversion shall occur until and unless the Board takes
appropriate action. The Committee, with the consent of the optionee, may also
terminate any portion of any ISO that has not been exercised at the time of such
termination.
17. RESTRICTED STOCK. Each Grant of Restricted Stock under the
Plan shall be evidenced by an instrument (a "Restricted Stock Agreement") in
such form as the Committee shall prescribe from time to time in accordance with
the Plan and shall comply with the following terms and conditions, and with such
other terms and conditions as the Committee, in its discretion, shall establish:
(a) The Committee shall determine the number of shares of
Common Stock to be issued to an eligible person pursuant to the grant of
Restricted Stock, and the extent, if any, to which they shall be issued in
exchange for cash, other consideration, or both.
(b) Shares issued pursuant to a grant of Restricted Stock may
not be sold, assigned, transferred, pledged or otherwise disposed of, except by
will or the laws of descent and distribution, or as otherwise determined by the
Committee in the Restricted Stock Agreement, for such period as the Committee
shall determine, from the date on which the Restricted Stock is granted (the
"Restricted Period"). The Company will have the option to repurchase the Common
Stock at such price as the Committee shall have fixed in the Restricted Stock
Agreement which option will be exercisable (i) if the Participant's continuous
employment or performance of services for the Company and the Related
Corporations shall terminate prior to the expiration of the Restricted Period,
(ii) if, on or prior to the expiration of the Restricted Period or the earlier
lapse of such repurchase option, the Participant has not paid to the Company an
amount equal to any federal, state, local or foreign income or other taxes which
the Company determines is required to be withheld in respect of such Restricted
Stock, or (iii) under such other circumstances as determined by the Committee in
its discretion. Such repurchase option shall be exercisable on such terms, in
such manner and during such period as shall be determined by the Committee in
the Restricted Stock Agreement. Each certificate for shares issued as Restricted
Stock shall bear an appropriate legend referring to the foregoing repurchase
option and other restrictions; shall be deposited by the stockholder with the
Company, together with a stock power endorsed in blank; or shall be evidenced in
such other manner permitted by applicable law as determined by the Committee in
its discretion. Any attempt to dispose of any such shares in contravention of
the foregoing repurchase option and other restrictions shall be null and void
and without effect. If shares issued as Restricted Stock shall be repurchased
pursuant to the repurchase option described above, the stockholder, or in the
event of his death, his personal representative, shall forthwith deliver to the
Secretary of the Company the certificates for the
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shares, accompanied by such instrument of transfer, if any, as may reasonably be
required by the Secretary of the Company. If the repurchase option described
above is not exercised by the Company, such repurchase option and the
restrictions imposed pursuant to the first sentence of this subparagraph (b)
shall terminate and be of no further force and effect.
(c) If a person who has been in continuous employment or
performance of services for the Company or a Related Corporation since the date
on which Restricted Stock was granted to him shall, while in such employment or
performance of services, die, or terminate such employment or performance of
services by reason of disability or by reason of early, normal or deferred
retirement under an approved retirement program of the Company or a Related
Corporation (or such other plan or arrangement as may be approved by the
Committee in its discretion, for this purpose) and any of such events shall
occur after the date on which the Restricted Stock was granted to him and prior
to the end of the Restricted Period, the Committee may determine to cancel the
repurchase option (and any and all other restrictions) on any or all of the
shares of Restricted Stock; and the repurchase option shall become exercisable
at such time as to the remaining shares, if any.
18. TERM AND AMENDMENT OF PLAN. This Plan was adopted by the Board
on April 4, 1997, subject to approval of the Plan by the stockholders of the
Company. The Plan shall expire on April 4, 2007 (except as to Options and
Restricted Stock outstanding on that date). Subject to the provisions of
paragraph 6 above, Options and Restricted Stock may be granted under the Plan by
the Committee, prior to the date of stockholder approval of the Plan. If the
approval of Stockholders is not obtained by April 4, 1998, any grants of Options
or Restricted Stock under the Plan made prior to that date will be rescinded.
The Board may terminate or amend the Plan in any respect at any time, except
that, any amendment that (a) increases the total number of shares that may be
issued under the Plan (except by adjustment pursuant to paragraph 14); (b)
changes the class of persons eligible to participate in the Plan, or (c)
materially increases the benefits to participants under the Plan, shall be
subject to approval by the stockholders of the Company obtained within 12 months
before or after the Board adopts a resolution authorizing any of the foregoing
amendments, and shall be null and void if such approval is not obtained. Except
as provided in the fourth sentence of this paragraph 18, in no event may action
of the Board or stockholders alter or impair the rights of an optionee or
purchaser of Restricted Stock without his consent, under any Option or
Restricted Stock previously granted to him.
19. APPLICATION OF FUNDS. The proceeds received by the Company
from the sale of shares pursuant to Options and Restricted Stock authorized
under the Plan shall be used for general corporate purposes.
20. GOVERNMENTAL REGULATION. The Company's obligation to sell and
deliver shares of the Common Stock under this Plan is subject to the approval of
any governmental authority required in connection with the authorization,
issuance or sale of such shares.
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21. WITHHOLDING OF ADDITIONAL INCOME TAXES. The Company, in
accordance with the Code, may, upon exercise of a Non-Qualified Option or the
purchase of Common Stock for less than its fair market value or the lapse of
restrictions on Restricted Stock or the making of a Disqualifying Disposition
(as defined in paragraph 22) require the employee to pay additional withholding
taxes in respect of the amount that is considered compensation includible in
such person's gross income.
22. NOTICE TO COMPANY OF DISQUALIFYING DISPOSITION. Each employee
who receives ISOs shall agree to notify the Company in writing immediately after
the employee makes a disqualifying disposition of any Common Stock received
pursuant to the exercise of an ISO (a "Disqualifying Disposition").
Disqualifying Disposition means any disposition (including any sale) of such
stock before the later of (a) two years after the employee was granted the ISO
under which he acquired such stock, or (b) one year after the employee acquired
such stock by exercising such ISO. If the employee has died before such stock is
sold, these holding period requirements do not apply and no Disqualifying
Disposition will thereafter occur.
23. GOVERNING LAWS; CONSTRUCTION. The validity and construction of
the Plan and the instruments evidencing Options and Restricted Stock shall be
governed by the laws of the Commonwealth of Massachusetts. In construing this
Plan, the singular shall include the plural and the masculine gender shall
include the feminine and neuter, unless the context otherwise requires.
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Exhibit 23.1
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[LETTERHEAD OF COOPERS & LYBRAND L.L.P.]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement on Form S-8 of Cyrk, Inc. of our report dated February 14, 1996 on our
audits of the consolidated financial statements and the financial statement
schedule of Cyrk, Inc. as of December 31, 1996 and 1995, and for the years ended
December 31, 1996, 1995, and 1994, which report is included in its Annual Report
on Form 10-K for the year ended December 31, 1996 filed with the Securities and
Exchange Commission.
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
February 4, 1998
