<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 15, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
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 (IRS Employer Identification No.)
incorporation or organization)
</TABLE>
3 POND ROAD, GLOUCESTER, MASSACHUSETTS 01930
(978) 283-5800
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------
PATRICK D. BRADY
CYRK, INC.
3 POND ROAD, GLOUCESTER, MASSACHUSETTS 01930
(978) 283-5800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------
COPY TO:
CAMERON READ, ESQ.
CHOATE, HALL & STEWART
EXCHANGE PLACE
53 STATE STREET
BOSTON, MASSACHUSETTS 02109
(617) 248-5000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time or at one time after effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to a Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value......... 389,875 $5.9375 $2,314,882.80 $643.54
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee, in
accordance with Rule 457 under the Securities Act, on the basis of the
average of the high and low sale prices of the Common Stock on October 13,
1999 as reported on The Nasdaq Stock Market.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
PROSPECTUS
389,875 SHARES
CYRK, INC. LOGO
COMMON STOCK
------------------------
This prospectus is part of a registration statement that covers 389,875
shares of our common stock. These shares may be offered and sold from time to
time by the stockholders listed below. We will not receive any of the proceeds
from the sale of these shares.
THE COMMON STOCK OFFERED IN THIS PROSPECTUS INVOLVES A HIGH DEGREE OF RISK.
FOR A DISCUSSION OF CERTAIN FACTORS WHICH SHOULD BE CONSIDERED IN CONNECTION
WITH THE PURCHASE OF THESE SECURITIES, SEE "RISK FACTORS" BEGINNING ON PAGE
FIVE.
Our common stock is listed on the Nasdaq National Market under the symbol
"CYRK." On October 13, 1999, the last reported sale price of our common stock on
the Nasdaq National Market was $5.9375 per share.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS OCTOBER , 1999.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
THE COMPANY................................................. 3
RISK FACTORS................................................ 3
USE OF PROCEEDS............................................. 6
SELLING STOCKHOLDERS........................................ 6
PLAN OF DISTRIBUTION........................................ 7
INTERESTS OF NAMED EXPERTS AND COUNSEL...................... 8
WHERE YOU CAN FIND MORE INFORMATION......................... 8
</TABLE>
You should rely only on the information contained or incorporated by
reference in this prospectus and in any accompanying prospectus supplement. No
one has been authorized to provide you with different information.
The shares of common stock are not being offered in any jurisdiction where
the offer is not permitted.
You should not assume that the information in this prospectus or in any
prospectus supplement is accurate as of any date other than the date on the
front of such documents.
2
<PAGE> 4
THE COMPANY
Cyrk, Inc. is a full-service, integrated provider of marketing and
promotional products and services to companies seeking to promote their brand
name and to build customer loyalty. Our principal executive offices are located
at 3 Pond Road, Gloucester, Massachusetts 01930 (telephone (978) 283-5800).
RISK FACTORS
In addition to the other information contained in this Prospectus, the
following factors should be considered carefully in evaluating an investment in
the common stock offered by this Prospectus. In particular, potential investors
are advised that statements contained herein or incorporated by reference into
this Prospectus expressing the beliefs and expectations of management regarding
our future results or performance are forward looking statements based on
current expectations that involve a number of risks and uncertainties. The
following factors describe certain market risks associated with an investment in
the common stock and various of the risks and uncertainties which could cause
actual results to differ materially from management expectations.
WE DEPEND ON THREE SIGNIFICANT CUSTOMERS AND THE LOSS OF ANY OF THEM WOULD
ADVERSELY AFFECT OUR BUSINESS OPERATIONS
In recent years, our business has been heavily dependent on purchases of
promotional products by our key customers including Philip Morris Incorporated
and the Pepsi-Cola Company, and by the sales of licensed products of other key
customers including Ty Inc. Additionally, the business of our subsidiary, Simon
Marketing, Inc., is heavily dependent on purchases of promotional products and
services by McDonald's Corporation or its franchisees for which it receives an
annual fee. Our agreements with Pepsi terminated in December of 1997. Our sales
and results of operations will be harmed by a loss of Philip Morris, McDonald's
or Ty Inc. or a significant reduction in their level of purchases from us
without an offsetting increase in purchases by new or other existing customers.
OUR CUSTOMERS CAN CANCEL PURCHASE ORDERS WITH LIMITED PENALTIES
As is generally the case with our other promotional product customers, our
agreements with Philip Morris and McDonald's do not require them to make a
certain level of purchases. Instead, purchase commitments are represented by
purchase orders placed by the customers from time to time during the course of a
promotion. The actual level of purchases by Philip Morris, McDonald's and other
promotional products customers depends on a number of factors, including the
duration of the promotion and consumer redemption rates. Purchase orders are
generally subject to cancellation with limited penalty. Consequently, our level
of net sales is difficult to predict accurately and can fluctuate greatly from
quarter to quarter.
INDUSTRY CONDITIONS FACING OUR CUSTOMERS MAY HARM OUR SALES
Our business is heavily dependent on the promotional budgets of our
customers, which in turn are influenced by industry conditions and other
factors. Accordingly, industry conditions faced by Philip Morris in particular
and conditions in the tobacco industry in general are expected to impact our
business. There can be no assurance that these conditions will not lead to a
reduction in advertising and promotional spending by Philip Morris, or that
Philip Morris will not change its advertising and promotional strategy in a
manner that reduces the use of promotional programs such as the Marlboro
Adventure Team, Country Store and Unlimited promotions. A significant reduction
in spending by Philip Morris on promotional product programs without an
offsetting increase in purchases by existing or new customers will harm our
business and results of operations.
For example, on November 23, 1998, certain tobacco companies, including
Philip Morris, entered into a settlement agreement with 46 states and five
United States territories that effectively ended the lawsuits brought by the
states against the tobacco industry over public-health costs connected with
smoking. Among other things, the settlement agreement prohibits the use of brand
names by the tobacco companies
3
<PAGE> 5
in connection with the types of promotions and programs we provide Philip
Morris. This restriction began on July 1, 1999. The settlement agreement,
however, does not prohibit the use of Philip Morris's corporate name for such
promotions or programs. Due to the restrictions on the use of tobacco brand
names and the other limitations imposed by the settlement agreement on the
tobacco industry, the settlement agreement could harm our sales to Philip
Morris.
Similarly, the United States Food and Drug Administration has issued final
regulations with respect to promotional programs relating to tobacco products.
These regulations, among other things, ban:
- gifts based on proof of purchase of tobacco products or redeemable
coupons;
- the use of tobacco brand names or any other indices of tobacco brand
identification on non-tobacco products (e.g. T-shirts, hats, other
clothing, gym bags and trinkets); and
- brand-name sponsorship of sporting events, concerts and other events.
In April of 1997, a federal district court in North Carolina ruled that the
FDA did not have the authority to restrict the use of tobacco brand
identification on promotional items and struck down this section of the
regulations. The decision was appealed. If this decision is reversed, the
regulations could also harm our sales to Philip Morris.
OUR BUSINESS MAY FLUCTUATE SIGNIFICANTLY BECAUSE OF DECREASED PROMOTIONAL
PRODUCT DEMAND
Our business is driven by the spending of companies to promote their
corporate identities and brand name products. If the demand for brand name
products diminishes or if our customers decrease their use of promotional
product programs to promote their corporate identities and brands, our business
will be harmed. In addition, our relationship with many of our promotional
products customers has been limited to the sourcing of products being offered or
sold by the customer in connection with a single promotional program. There can
be no assurance that such customers will continue to use us to source products
for future promotional programs.
OUR BUSINESS MAY FLUCTUATE SIGNIFICANTLY BECAUSE OF DECREASED LICENSED PRODUCT
DEMAND
Our business is also driven by the retail demand for licensed products.
Typically, our licenses are with well recognized, prominent companies that seek
to extend their brand recognition through licensed programs. The success of the
licensed products depends on the popularity of the licensed properties as well
as the popularity of the licensed products. We spend substantial resources in
obtaining licenses and developing and manufacturing licensed products including
taking large inventory positions required for the introduction of these products
into the retail channel of distribution. Our results of operations may be harmed
if the licensed products or the licensed properties on which these products are
based turn out to be less popular than we anticipate. The failure of these
products to sell into and/or through the retail channel of distribution would
harm our operating results.
OUR INDUSTRY IS SUBJECT TO INTENSE COMPETITION
Philip Morris and certain of our other customers seek competitive bids for
their promotional programs. Our profit margin depends, to a great extent, on our
competitive position when bidding and our ability to continually lower product
costs after being awarded bids. Competition is not expected to abate and thus
will continue to exert pressure on the our profit margin in the future.
ECONOMIC PROBLEMS IN ASIA MAY HARM OUR SALES
The majority of our net sales in recent years have been attributable to
products manufactured by subcontractors located in Asia. We have no long-term
contracts with these manufacturing sources and often compete with other
companies for production facilities and import quota capacity. In addition, many
4
<PAGE> 6
Asian manufacturers require that a letter of credit be posted at the time a
purchase order is placed. There can be no assurance that we will continue to
have the necessary credit facilities for the purpose of posting such letters of
credit. Our business is subject to the risks normally associated with conducting
business abroad, such as:
- foreign government regulations;
- political unrest;
- disruptions or delays in shipments;
- fluctuations in foreign currency exchange rates; and
- changes in economic conditions in countries in which our manufacturing
sources are located.
If any such factors were to render the conduct of our business in a
particular country undesirable or impractical, or if our current foreign
manufacturing sources were to cease doing business with us for any reason, our
business and operating results may be harmed.
IMPORT RESTRICTIONS IN ASIA MAY HURT OUR BUSINESS
The importation of products manufactured in Asia is subject to the
constraints imposed by bilateral agreements between the United States and
substantially all of the countries from which we import goods. These agreements
impose quotas that limit the quantity of certain types of goods, including
textile products imported by us, which can be imported into the United States
from those countries. These agreements also allow the United States to impose,
under certain conditions, restraints on the importation of categories of
merchandise that, under the terms of the agreements, are not subject to
specified limits.
Our continued ability to source products through imports may be harmed by:
- additional bilateral and multilateral agreements;
- unilateral trade restrictions;
- significant decreases in import quotas;
- the disruption of trade from exporting countries as a result of political
instability; or
- the imposition of additional duties, taxes and other charges or
restrictions on imports.
Products imported by us from China currently receive the same preferential
tariff treatment accorded goods from countries granted "most favored nation"
status. However, the renewal of China's most favored nation treatment has been a
contentious political issue for several years and there can be no assurance that
such status will be continued. If China were to lose its most favored nation
status, goods imported from China will be subject to significantly higher duty
rates which would increase the cost of goods from China and harm our business.
WE MAY BE UNABLE TO RETAIN AND ATTRACT KEY PERSONNEL
We are dependent on several key personnel, including Patrick D. Brady, our
Chief Executive Officer, President and Chief Operating Officer and Allan Brown,
Chief Executive Officer of Simon Marketing. The loss of the services of either
of them could harm our business. In addition, our continued success also depends
upon our ability to retain and attract skilled design, marketing and management
personnel.
WE MAY NOT SUCCESSFULLY INTEGRATE RECENTLY ACQUIRED SUBSIDIARIES
The successful integration of our operations with those of our recently
acquired subsidiaries, Simon Marketing, which we acquired on June 9, 1997, and
Tonkin, Inc., which we acquired on April 7, 1997, will require the coordination
of the respective product and promotional offerings and related sales,
marketing, development and administrative activities of us, Simon Marketing and
Tonkin. There can be no assurance
5
<PAGE> 7
that we will not encounter unexpected difficulties in such integration or that
the expected benefits of these business combinations will be realized.
FUTURE ACQUISITIONS AND STRATEGIC ALLIANCES MAY INVOLVE FINANCIAL RISK
We expect to acquire other businesses which are complementary to our
business or to enter into strategic alliances with such businesses. For example,
on September 1, 1999, we entered into a Securities Purchase Agreement with
Overseas Toys, L.P., an affiliate of The Yucaipa Companies, pursuant to which
Overseas will invest $25 million into us in exchange for convertible preferred
stock and a warrant to acquire additional convertible preferred stock. In
addition, if the transaction is completed, Yucaipa will provide management
consulting services to us in exchange for an annual fee. There can be no
assurance that this strategic alliance with Yucaipa, or any future acquisition
or strategic alliance, will be completed or, if completed, will result in
long-term benefits. Further, if we are not successful in our acquisition or
strategic alliance endeavors, including the possible transaction with Yucaipa,
our operating results in the future may be harmed.
"YEAR 2000" ISSUES MAY INCREASE OUR COSTS OR DISRUPT OUR OPERATIONS
The Year 2000 problem is the result of computer programs being written
using two digits rather than four to define the applicable year. Any of our
computer programs that have date-sensitive software may recognize a date using
"00" as the year 1900 rather than the year 2000. This could result in a system
failure or miscalculations causing disruptions of our operations, including,
among other things, a temporary inability to process transactions, send invoices
or engage in similar normal business activities.
We do not anticipate that the addressing of the Year 2000 problem for our
internal information systems and current and future products will have a
material impact on our operations or financial results. However, there can be no
assurance that these costs will not be greater than anticipated, or that
corrective actions that we undertake will be completed before any Year 2000
problems could occur. These combining factors could harm our financial results.
In addition, we have initiated formal communications with our major customers
and suppliers to determine the extent to which we may be vulnerable to their
failure to address their own Year 2000 issues. At this time, we cannot determine
the impact the Year 2000 will have on them. If our customers or suppliers do not
convert their systems to become Year 2000 compliant, our business and operating
results could be harmed.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares by the
selling stockholders.
SELLING STOCKHOLDERS
All of the shares registered for sale under this prospectus will be owned
immediately after registration by current or former employees of Cyrk or its
subsidiary, Simon Marketing, Inc. The address for each of these selling
stockholders, except for Mr. Brady, is c/o Simon Marketing, Inc., 1900 Avenue of
the Stars, Los Angeles, California 90067. The address for Mr. Brady is c/o Cyrk,
Inc., 3 Pond Road, Gloucester, Massachusetts 01930.
All of the shares offered by the selling stockholders, except for Mr.
Brady, were acquired pursuant to agreements entered into by us in connection
with our acquisition of Simon Marketing, Inc. on June 9, 1997. Under the terms
of these agreements, we agreed to register the shares received by these selling
stockholders in connection with the merger. Mr. Brady is one of our initial
founders. Our registration of these shares does not mean that the selling
stockholders will sell any or all of the shares. In the past three years, none
of the selling stockholders have had a material relationship with us, except
that Patrick Brady is our Chairman, Chief Executive Officer and President, Allan
Brown is the Chief Executive Officer and President of Simon Marketing, Eric
Stanton is a consultant to Simon Marketing and some of the other selling
stockholders are employees of Simon Marketing.
6
<PAGE> 8
Set forth below, with respect to each selling stockholder, is the number of
shares owned on October , 1999, the number of shares offered pursuant to this
Prospectus and the number of shares to be owned after completion of the offering
(assuming the sale of all shares offered under this prospectus).
<TABLE>
<CAPTION>
TOTAL NO. OF SHARES NO. OF
OWNED ON NO. OF SHARES SHARES OWNED
NAME OCTOBER , 1999 TO BE OFFERED OR SOLD AFTER COMPLETION
---- ------------------- --------------------- ----------------
<S> <C> <C> <C>
Patrick Brady(1)............................. 1,295,600 17,778 1,277,822
Allan Brown(2)............................... 1,148,023 65,818 1,082,205
Eric Stanton(3)(4)........................... 1,148,023 106,637 1,041,386
Vivian Foo(5)................................ 42,402 42,402 0
Frank Chessman............................... 3,533 3,533 0
Paul Marcus.................................. 64,450 42,402 22,048
Jerry Beckman................................ 42,402 42,402 0
Jay Babineau................................. 42,402 42,402 0
Ed Rickerson, Sr............................. 38,781 26,501 12,280
</TABLE>
- ---------------
(1) These shares are being transferred pursuant to an agreement between Mr.
Brady and one of his personal consultants.
(2) These shares are subject to option agreements between Mr. Brown and current
or former employees, consultants or agents of Simon Marketing, pursuant to
which such individuals may purchase certain shares from Mr. Brown at an
agreed upon purchase price.
(3) These shares are subject to option agreements between Mr. Stanton and
current or former employees, consultants or agents of Simon Marketing,
pursuant to which such individuals may purchase certain shares from Mr.
Stanton at an agreed upon purchase price.
(4) The shares are held by the Eric Stanton Self Declaration of Revocable Trust
u/a May 11, 1990, as amended. Mr. Stanton is the beneficial owner of the
shares because he is the settlor and sole trustee of this trust, and has the
sole power to direct the disposition of the shares.
(5) The shares are held by the Vivian Foo Self Declaration of Revocable Trust
u/a October 9, 1992, as amended. Ms. Foo is the beneficial owner of the
shares because she is the settlor and sole trustee of this trust and has the
sole power to direct the disposition of the shares.
PLAN OF DISTRIBUTION
We are registering the shares covered by this prospectus for the selling
stockholders. As used in this prospectus, "selling stockholders" includes the
pledgees, donees, transferees or others who may later hold the selling
stockholders' interests. We will pay the costs and fees of registering the
shares, but the selling stockholders will pay any brokerage commissions,
discounts or other expenses relating to the sale of the shares.
The selling stockholders may sell the shares in the over-the-counter market
or otherwise, at market prices prevailing at the time of sale, at prices related
to the prevailing market prices, or at negotiated prices. In addition, the
selling stockholders may sell some or all of their shares through:
- a block trade in which a broker-dealer may resell a portion of the block,
as principal, in order to facilitate the transaction;
- purchases by a broker-dealer, as principal, and resale by the
broker-dealer for its account; or
- ordinary brokerage transactions and transactions in which a broker
solicits purchasers.
7
<PAGE> 9
When selling the shares, the selling stockholders may enter into hedging
transactions. For example, the selling stockholders may:
- enter into transactions involving short sales of the shares by
broker-dealers;
- sell shares short themselves and redeliver such shares to close out their
short positions;
- enter into option or other types of transactions that require the selling
stockholder to deliver shares to a broker-dealer, who will then resell or
transfer the shares under this prospectus; or
- loan or pledge the shares to a broker-dealer, who may sell the loaned
shares or, in the event of default, sell the pledged shares.
The selling stockholders may negotiate and pay broker-dealers commissions,
discounts or concessions for their services. Broker-dealers engaged by the
selling stockholders may allow other broker-dealers to participate in resales.
However, the selling stockholders and any broker-dealers involved in the sale or
resale of the shares may qualify as "underwriters" within the meaning of the
Section 2(a)(11) of the Securities Act of 1933, or the 1933 Act. In addition,
the broker-dealers' commissions, discounts or concession may qualify as
underwriters' compensation under the 1933 Act. If the selling stockholders
qualify as "underwriters," they will be subject to the prospectus delivery
requirements of Section 5(b)(2) of the 1933 Act.
In addition to selling their shares under this prospectus, the selling
stockholders may:
- agree to indemnify any broker-dealer or agent against certain liabilities
related to the selling of the shares, including liabilities arising under
the 1933 Act;
- transfer their shares in other ways not involving market makers or
established trading markets, including directly by gift, distribution, or
other transfer; or
- sell their shares under Rule 144 of the 1933 Act rather than under this
prospectus, if the transaction meets the requirements of Rule 144.
Mr. Stanton and Mr. Brown have informed us that they intend to sell their
shares covered by this prospectus to current or former employees, consultants or
agents of Simon Marketing pursuant to option agreements entered into between Mr.
Brown or Mr. Stanton, as the case may be, and such individuals. Mr. Brady has
informed us that he intends to transfer his shares covered by this prospectus
pursuant to an agreement with one of his personal consultants. See "Selling
Stockholders."
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the shares offered by this prospectus is being passed upon
for us by Choate, Hall & Stewart, Boston, Massachusetts. Cameron Read, a partner
at Choate, Hall & Stewart, is the Assistant Secretary of Cyrk, and Choate, Hall
& Stewart provides significant legal services to us.
WHERE YOU CAN FIND MORE INFORMATION
- Government Filings. We file annual, quarterly and special reports and
other information with the Securities and Exchange Commission. You may
read and copy any document that we file at the SEC's public reference
rooms in Washington, D.C., New York, New York, and Chicago, Illinois.
Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. Our SEC filings are also available to you free of
charge at the SEC's web site at http://www.sec.gov.
- Stock Market. The shares are traded as "National Market Securities" on
the Nasdaq National Market. Material filed by us can be inspected at the
offices of the National Association of Securities Dealers, Inc., Reports
Section, 1735 K Street, N.W., Washington, D.C. 20006.
- Information Incorporated by Reference. The SEC allows us to "incorporate
by reference" the information we file with them, which means that we can
disclose important information to you by
8
<PAGE> 10
referring you to those documents. The information incorporated by
reference is considered to be part of this prospectus, and information
that we file later with the SEC will automatically update and supersede
previously filed information, including information contained in this
document.
We incorporate by reference the documents listed below and any future
filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until this offering has been completed:
1. Cyrk's Annual Report on Form 10-K for the year ended December 31, 1998,
as amended.
2. Cyrk's Quarterly Report on Form 10-Q for the quarter ending March 31,
1999.
3. Cyrk's Quarterly Report on Form 10-Q for the quarter ending June 30,
1999.
4. Cyrk's Report on Form 8-K dated September 1, 1999.
5. Cyrk's Proxy Statement dated October 12, 1999.
6. The description of Cyrk's common stock, which is contained in Cyrk's
registration statement filed on Form S-1, dated February 15, 1994.
You may request free copies of these filings by writing or telephoning us
at the following address:
Cyrk, Inc.
3 Pond Road
Gloucester, Massachusetts 01930
Attn: Patricia J. Landgren, Esq.
Tel: (978) 283-5800
e-mail: [email protected]
9
<PAGE> 11
- ------------------------------------------------------
- ------------------------------------------------------
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY CYRK. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER OF ANY SECURITIES OTHER THAN THOSE TO WHICH IT RELATES OR AN OFFER TO
SELL, OR A SOLICITATION OF AN OFFER TO BUY, TO ANY PERSON IN ANY JURISDICTION
WHERE SUCH AN OFFER OR SOLICITATION WOULD BE UNLAWFUL. NEITHER THE DELIVERY OF
THIS PROSPECTUS NOR ANY SALE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF.
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
389,875 SHARES
CYRK, INC. LOGO
COMMON STOCK
------------------------------
PROSPECTUS
------------------------------
OCTOBER , 1999
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by the
registrant in connection with the distribution of the securities being
registered hereunder. All of the amounts shown are estimates, except the
Securities and Exchange Commission registration fee.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $ 643.54
Legal Fees and Expenses..................................... $10,000.00
Accountants' Fees and Expenses.............................. $ 1,000.00
Total............................................. $11,643.54
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article IX of Cyrk's Restated Certificate of Incorporation provides that
Cyrk shall, to the fullest extent permitted from time to time under the General
Corporation Law of the State of Delaware, 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 Cyrk 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.
In addition, Cyrk has entered into Indemnification Agreements with each of
its current directors. These agreements provide indemnification rights for
Cyrk's directors similar to those given to them under Article IX of Cyrk's
Restated Certificate of Incorporation. Cyrk also maintains directors' and
officers' liability insurance policies.
ITEM 16. EXHIBITS
<TABLE>
<S> <C>
5.1 Opinion of Choate, Hall & Stewart as to validity of shares
being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
25.1 Power of Attorney (part of Signature Page).
</TABLE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(a) To include any prospectus required by section 10(a)(3) of the
1933 Act;
(b) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
II-1
<PAGE> 13
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(c) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by Cyrk pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(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.
(4) For purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
(5) Insofar as indemnification of liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described
under Item 15 above, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with any of the
securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-2
<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Gloucester, Commonwealth
of Massachusetts, on October 15, 1999.
CYRK, INC.
By: /s/ PATRICK D. BRADY
----------------------------------
PATRICK D. BRADY,
CHIEF EXECUTIVE OFFICER, PRESIDENT
AND CHIEF OPERATING OFFICER
We, the undersigned officers and directors of Cyrk, Inc., hereby severally
constitute and appoint Patrick D. Brady and Dominic F. Mammola, and each of them
singly, our true and lawful attorneys, with full power to them and each of them
singly, to sign for us in our names in the capacities indicated below, all
pre-effective and post-effective amendments to this registration statement and
any related subsequent registration statement pursuant to Rule 462(b) of the
Securities Act of 1933, as amended, and generally to do all things in our names
and on our behalf in such capacities to enable Cyrk, Inc. to comply with the
provisions of the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on October 15 1999, by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
NAME CAPACITY
---- --------
<C> <S>
/s/ PATRICK D. BRADY Chief Executive Officer, President, Chief
- --------------------------------------------------- Operating Officer (Principal Executive Officer)
PATRICK D. BRADY and Director
/s/ DOMINIC F. MAMMOLA Executive Vice President, Chief Financial
- --------------------------------------------------- Officer (Principal Financial and Accounting
DOMINIC F. MAMMOLA Officer) and Director
/s/ TED L. AXELROD Executive Vice President and Director
- ---------------------------------------------------
TED L. AXELROD
/s/ JOSEPH W. BARTLETT Director
- ---------------------------------------------------
JOSEPH W. BARTLETT
/s/ JOSEPH ANTHONY KOUBA Director
- ---------------------------------------------------
JOSEPH ANTHONY KOUBA
/s/ GREGORY P. SHLOPAK Director
- ---------------------------------------------------
GREGORY P. SHLOPAK
</TABLE>
II-3
<PAGE> 15
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER
- --------------
<C> <S>
5.1 Opinion of Choate, Hall & Stewart as to validity of shares
being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
25.1 Power of Attorney (part of Signature Page).
</TABLE>
<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
October 15, 1999
Cyrk, Inc.
3 Pond Road
Gloucester, Massachusetts 01930
Ladies and Gentlemen:
This opinion is delivered to you in connection with the registration
statement on Form S-3 (the "REGISTRATION STATEMENT") to be filed on or about
October 15, 1999 by Cyrk, Inc. (the "COMPANY") under the Securities Act of 1933,
as amended (the "SECURITIES ACT"), for registration under the Securities Act of
shares of Common Stock, $.01 par value per share (the "COMMON STOCK"), of the
Company. Capitalized terms used and not otherwise defined shall have the
meanings given to them in the Registration Statement.
We are familiar with the Company's Restated Certificate of Incorporation,
its Amended and Restated By-Laws, and the records of its corporate proceedings.
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 selling stockholders pursuant to the
Registration Statement have been 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. We further consent to the reference to this firm
in the section entitled "Interests of Named Experts and Counsel" in the
Registration Statement.
Very truly yours,
CHOATE, HALL & STEWART
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 11, 1999, except as to the
information presented in Note 15, for which the date is March 10, 1999, relating
to the financial statements and financial statement schedule, which appears in
Cyrk, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1998.
PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
October 15, 1999
