<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 18, 2000
REGISTRATION NO.
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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>
101 EDGEWATER DRIVE, WAKEFIELD, MASSACHUSETTS 01880
(781) 876-5800
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------
PATRICK D. BRADY
CYRK, INC.
101 EDGEWATER DRIVE
WAKEFIELD, MASSACHUSETTS 01880
(781) 876-5800
(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>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value................. 218,988 $4.75 $1,040,193 $274.61
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</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 August 15,
2000 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.
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<PAGE> 2
PROSPECTUS
218,988 SHARES
CYRK, INC. LOGO
COMMON STOCK
------------------------
This prospectus is part of a registration statement that covers 218,988
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 August 15, 2000, the last reported sale price of our common stock on
the Nasdaq National Market was $4.625 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 AUGUST , 2000.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
THE COMPANY................................................. 3
RISK FACTORS................................................ 3
USE OF PROCEEDS............................................. 6
SELLING STOCKHOLDERS........................................ 7
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 101 Edgewater Drive, Wakefield, Massachusetts 01880 (telephone (781)
876-5800).
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
our 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,
or Philip Morris, and by the sales of licensed products of other key customers
including Ty Inc. We expect our Ty-related business in 2000 to be significantly
less than our 1999 volume of Ty-related business. Additionally, the business of
our subsidiary, Simon Marketing, Inc., is heavily dependent on purchases of
promotional products and services by McDonald's Corporation, or McDonald's or
its franchisees for which it receives an annual fee. Our business, sales and
results of operations will be materially adversely affected 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.
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 materially adversely affected. 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
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<PAGE> 5
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 business, sales and results of
operations may be materially adversely affected if the licensed products or the
licensed properties on which these products are based are less popular than we
anticipate or fail to sell into and/or through the retail channel of
distribution.
OUR INDUSTRY IS SUBJECT TO INTENSE COMPETITION
The promotional products industry is highly fragmented and competitive, and
some of our competitors have substantially greater financial and other resources
than we do. We also compete with the services of in-house advertising,
promotional products and purchasing departments and with designers and vendors
of single or multiple product lines. 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 decrease product costs after being awarded bids.
Competition is not expected to abate and thus will continue to exert pressure on
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
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 in order to post 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, sales and operating results could be materially adversely affected.
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.
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<PAGE> 6
Products imported by us from China currently receive the same preferential
tariff treatment accorded goods from countries granted permanent "normal trade
relations". However, the annual renewal by Congress of normal trade relations
with China has been a contentious political issue for several years and there
can be no assurance that such relations will be continued. If China were to lose
its grant of normal trade relations with the U.S., goods imported from China
would be subject to significantly higher duty rates which would increase the
cost of goods from China and could materially harm our business.
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 materially
adversely affect our business, sales 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. Beginning on July 1, 1999, this settlement prohibits the use of brand
names by tobacco companies in connection with promotional programs relating to
tobacco products. The settlement agreement, however, does not prohibit the use
of Philip Morris's corporate name in promotional 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 materially and adversely affect our sales to Philip Morris which in turn
could materially harm our business and results of operations.
The settlement agreement does not affect the ability of private litigants
to sue the tobacco industry, and several private lawsuits and class actions are
currently pending in state and federal courts. Adverse judgments in these or
other actions could result in a reduction or change in spending by Philip Morris
on promotional product programs which in turn could materially harm our business
and results of operations. For instance, on July 14, 2000, a Florida jury
awarded a record $145 billion judgment against the world's leading tobacco
companies in favor of sick smokers in that state, nearly $74 billion of which is
to be paid by Philip Morris.
The United States Food and Drug Administration, or the FDA, had issued
final regulations with respect to promotional programs relating to tobacco
products. These regulations had, among other things, banned:
- 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.
On March 22, 2000, the Supreme Court ruled that the FDA does not have
jurisdiction to regulate tobacco products due to a lack of a clear Congressional
mandate. If Congress acts either (1) to delegate to the FDA the power to
regulate tobacco products, or (2) to regulate tobacco products through another
vehicle, such action may result in a reduction or change in spending by Philip
Morris on promotional product programs which in turn could materially harm our
business and results of operations.
WE MAY BE UNABLE TO RETAIN AND ATTRACT KEY PERSONNEL
We are dependent on several key personnel, including Patrick D. Brady and
Allan I. Brown, our Co-Chief Executive Officers and Co-Presidents. 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
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<PAGE> 7
and management personnel. The loss of one or several members of such personnel
could have a material adverse effect on our business.
WE MAY NOT SUCCESSFULLY RESTRUCTURE OUR COMPANY OR INTEGRATE RECENTLY ACQUIRED
SUBSIDIARIES
We recently announced a corporate restructuring to consolidate our
Corporate Promotions Group and Custom Product & Licensing Group into one
business unit. No assurances can be made that we will be able to successfully
integrate the operations, personnel, technologies, products, marketing efforts
and information systems of these two groups, or that the expected benefits of
this restructuring will ever be realized. The restructuring may divert
management's efforts from other aspects of our business.
The successful integration of our operations with those of Marketing
Incentives, or MI, which we acquired in 1996, and Tonkin, Inc., or Tonkin, which
we acquired in 1997, requires the coordination of the respective product and
promotional offerings and related sales, marketing, development, administrative
activities, and information systems of us, MI and Tonkin. In addition, our
integration efforts may direct management's efforts from other business
concerns. There can be no assurance that we will be able to successfully
integrate us, MI and Tonkin, or that the expected benefits of these business
combinations will ever be realized.
FUTURE ACQUISITIONS, INVESTMENTS, AND STRATEGIC ALLIANCES OR ALTERNATIVES MAY
INVOLVE FINANCIAL RISK
We may acquire or invest in other businesses which are complementary to our
business or enter into strategic alliances with such businesses, or explore
other strategic alternatives for Cyrk. In addition, the Company has made and may
continue to make venture investments. There can be no assurance that any current
or future acquisition, strategic or venture investment or strategic alliance or
strategic alternative will result in long-term benefits. If we are not
successful in our acquisitions, investments or alliances or any other financial
or strategic alternatives, our business and operating results in the future may
be harmed.
The Internet venture investments are subject to all the risks inherent in
the Internet marketplace and are further subject to valuation volatility of this
sector within the investment community. In addition, the early stage Internet
companies have a high degree of dependence on ready access to the capital
markets and, as such, are highly vulnerable to the pace and scale of change in
the capital markets.
OUR INTERNET OPERATIONS INVOLVE NUMEROUS RISKS
We have recently announced the formation of a new subsidiary to manage our
current Internet operations. The success of this subsidiary will be subject to
the risks inherent in our business as set forth in this Prospectus and will also
be dependent upon the widespread acceptance and use of the Internet as an
effective medium for commerce. There can be no assurances that this acceptance
and use will develop, or that it will develop in the marketing and promotional
products sector. Additionally, the development of our business on the Internet
involves a number of factors, including the growth of the number of users,
concerns about systems and transaction security, continued development of
technological infrastructure, increasing governmental regulation of the
Internet, rapid technology changes rendering existing technology obsolete, the
possibility of system downtime and/or failure due to technological or other
factors beyond our control, and the fact that legal standards relating to
intellectual property rights in Internet-related business are uncertain and
evolving. We are currently facing all of these challenges to some degree, and we
have not yet established our ability to meet them. Accordingly, there can be no
assurances that we will be successful with our Internet presence, and thus we
might not ever realize any benefits from this new subsidiary.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares by the
selling stockholders.
6
<PAGE> 8
SELLING STOCKHOLDERS
All of the shares registered for sale under this prospectus will be owned
immediately after registration by current or former employees of our subsidiary,
Simon Marketing, Inc. The address for each of these selling stockholders is c/o
Simon Marketing, Inc., 1900 Avenue of the Stars, Los Angeles, California 90067.
All of the shares offered by the selling stockholders were acquired
pursuant to agreements entered into by us in connection with our acquisition of
Simon Marketing 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. 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 some of the selling stockholders are employees of Simon Marketing.
Set forth below, with respect to each selling stockholder, is the number of
shares owned on August , 2000, 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 AUGUST , 2000 TO BE OFFERED OR SOLD AFTER COMPLETION
---- ------------------- --------------------- ----------------
<S> <C> <C> <C>
Vivian Foo(1)............................ 1,171,117 46,511 1,124,606
Frank Chessman........................... 3,875 3,875 0
Paul Marcus.............................. 110,961 46,511 64,450
Jerry Beckman............................ 88,913 46,511 42,402
Jay Babineau............................. 88,913 46,511 42,402
Ed Rickerson, Sr......................... 67,850 29,069 38,781
</TABLE>
---------------
(1) The shares are held by the Vivian Foo Living 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.
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
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<PAGE> 9
- 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 concessions 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 as set forth
above, 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.
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 Securities and Exchange
Commission allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to
you by 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, 1999,
as amended.
2. Cyrk's Quarterly Report on Form 10-Q for the quarter ending June 30,
2000.
3. Cyrk's Quarterly Report on Form 10-Q for the quarter ending March 31,
2000.
4. Cyrk's Proxy Statement dated April 27, 2000.
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<PAGE> 10
5. 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.
101 Edgewater Drive
Wakefield, Massachusetts 01880
Attn: Patricia J. Landgren, Esq.
Tel: (781) 876-5800
e-mail: [email protected]
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======================================================
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.
=======================================================
=======================================================
218,988 SHARES
CYRK, INC. LOGO
COMMON STOCK
------------------------------
PROSPECTUS
------------------------------
AUGUST , 2000
======================================================
<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......... $ 274.61
Legal Fees and Expenses..................................... $10,000.00
Accountants' Fees and Expenses.............................. $ 1,000.00
Total............................................. $11,274.61
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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 or she acted in good faith and in a manner he or she 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 or her conduct was unlawful.
Article VIII of Cyrk's Restated Certificate of Incorporation provides that
no director of Cyrk shall be personally liable to Cyrk or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (1) for any breach of the director's duty of loyalty to Cyrk or its
stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) under Section 174 of
the Delaware General Corporation Law, or (4) 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 Cyrk's Restated Certificate of Incorporation provides that
Cyrk 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 or she 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 is 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 certain
of its directors which provide indemnification rights for them similar to those
provided under Articles VIII and IX of Cyrk's Restated Certificate of
Incorporation. Cyrk also maintains insurance policies which insure our directors
and officers against certain liabilities which they may incur in their capacity
as such.
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>
II-1
<PAGE> 13
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 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
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Wakefield, The Commonwealth of Massachusetts, on
August 17, 2000.
CYRK, INC.
By /s/ PATRICK D. BRADY
------------------------------------
Patrick D. Brady, Co-Chief Executive
Officer and Co-President
We the undersigned directors of Cyrk, Inc. do hereby severally constitute
and appoint Patrick D. Brady, Dominic F. Mammola and Patricia J. Landgren, and
each of them singly, 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 CAPACITY
---- --------
<S> <C>
/s/ RONALD W. BURKLE Chairman
---------------------------------------------------
Ronald W. Burkle
</TABLE>
<TABLE>
<CAPTION>
/s/ JOSEPH BARTLETT Director
---------------------------------------------------
Joseph Bartlett
<S> <C>
/s/ PATRICK D. BRADY Director, Co-Chief Executive Officer &
--------------------------------------------------- Co-President
Patrick D. Brady
/s/ ALLAN I. BROWN Director, Co-Chief Executive Officer &
--------------------------------------------------- Co-President
Allan I. Brown
/s/ J. ANTHONY KOUBA Director
---------------------------------------------------
J. Anthony Kouba
/s/ GEORGE G. GOLLEHER Director
---------------------------------------------------
George G. Golleher
/s/ ERIKA PAULSON Director
---------------------------------------------------
Erika Paulson
</TABLE>
II-3
<PAGE> 15
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
-------
<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>
