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Exhibit 10.16
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated
as of November 10, 1999, by and among OVERSEAS TOYS, L.P., a Delaware limited
partnership (the "Investor") and CYRK, INC., a Delaware corporation (the
"Company").
WHEREAS, the Investor and the Company are parties to that
certain Securities Purchase Agreement dated September 1, 1999 (the "Securities
Purchase Agreement"), whereby, among other things, the Company will issue to the
Investor an aggregate of 25,000 shares of Series A Senior Cumulative
Participating Convertible Preferred Stock of the Company (the "Series A
Preferred Stock"), and a warrant to purchase an additional 15,000 shares of
Series A Preferred Stock (the "Warrant"), pursuant to the terms and conditions
set forth in the Securities Purchase Agreement;
WHEREAS, pursuant to the covenants of the Company contained in
the Securities Purchase Agreement, and as a condition to the Investor's
obligation to consummate the closing of the transactions contemplated thereby,
the Company is entering into this registration rights agreement (this
"Agreement") with the Investor with respect to the Warrant and the shares of
Company common stock, $.01 par value per share ("Common Stock"), underlying all
of the shares of Series A Preferred Stock and the Warrant that are being
acquired by the Investor pursuant to the Securities Purchase Agreement;
NOW, THEREFORE, upon the premises and the mutual promises
contained herein and in the Securities Purchase Agreement, and for good and
valuable consideration, the receipt and adequacy of which are acknowledged, the
parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the
following initially capitalized terms shall have the following meanings:
(a) "Affiliate" means, with respect to any person, any
other person who, directly or indirectly, is in control of, is controlled by or
is under common control with the former person.
(b) "Best Efforts" means the commercially reasonable
efforts that a prudent Person desirous of achieving a result would use in good
faith in similar circumstances to ensure that such result is achieved as
expeditiously as can reasonably be expected.
(c) "Holders" means the Investor or any Affiliate of the
Investor or any trustee for the account of the Investor and any "transferee" (as
such term is defined in Section 10(a) hereof) which is the record holder of
Registrable Securities.
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(d) "Registrable Securities" means the Warrant and the
shares of Common Stock underlying all of the shares of Series A Preferred Stock
and the Warrant that are being acquired by the Investor pursuant to the
Securities Purchase Agreement (collectively, the "Acquired Securities"), any
stock or other securities into which or for which such Acquired Securities may
hereafter be changed, converted or exchanged, and any other securities issued to
the Holders of such Acquired Securities (or such securities into which or for
which such Acquired Securities are so changed, converted or exchanged) upon any
reclassification, share combination, share subdivision, share dividend, merger,
consolidation or similar transactions or events, provided that any such
securities shall cease to be Registrable Securities if (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act (as defined below) and such securities shall
have been disposed of in accordance with the plan of distribution set forth in
such registration statement, (ii) such securities shall have been transferred
pursuant to Rule 144, or (iii) such securities are held by a Holder other than
the Investor, unless such Holder shall furnish the Company an opinion of
counsel, which opinion shall be reasonably satisfactory to the Company, to the
effect that all of such securities are not permitted to be distributed by such
Holder in one transaction pursuant to Rule 144.
(e) "Registration Expenses" means all reasonable expenses
in connection with any registration of securities pursuant to this Agreement
including, without limitation, the following: (i) SEC filing fees; (ii) the
fees, disbursements and expenses of the Company's counsel(s) and accountants in
connection with the registration of the Registrable Securities to be disposed of
under the Securities Act; (iii) all expenses in connection with the preparation,
printing and filing of the registration statement, any preliminary prospectus or
final prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to any Holders, underwriters and dealers and all
expenses incidental to delivery of the Registrable Securities; (iv) the cost of
producing blue sky or legal investment memoranda; (v) all expenses in connection
with the qualification of the Registrable Securities to be disposed of for
offering and sale under state securities laws, including the fees and
disbursements of counsel for the underwriters or Holders (provided that only the
fees and disbursements of a single counsel or firm for the Holders shall be
included) in connection with such qualification and in connection with any blue
sky and legal investments surveys; (vi) the filing fees incident to securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Registrable Securities to be disposed of; (vii)
transfer agents', depositories' and registrars' fees and the fees of any other
agent appointed in connection with such offering; (viii) all security engraving
and security printing expenses; (ix) all fees and expenses payable in connection
with the listing of the Registrable Securities on each securities exchange or
inter-dealer quotation system on which a class of common equity securities of
the Company is then listed; (x) all reasonable out-of-pocket expenses of the
Company incurred in connection with road show presentations; (xi) courier,
overnight delivery, word processing, duplication, telephone and facsimile
expenses of the Company; and (xii) any one-time payment for directors and
officers insurance directly related to such offering, provided the insurer
provides a separate statement for such payment;
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provided that any underwriting discounts and commissions with respect to the
registration of any Registrable Securities shall not be included.
(f) "Rule 144" means Rule 144 promulgated under the
Securities Act, or any similar rule hereafter adopted.
(g) "SEC" means the United States Securities and Exchange
Commission.
(h) "Securities Act" means the Securities Act of 1933, as
amended, or any successor statute.
2. DEMAND REGISTRATION.
(a) At any time, upon written notice from a Holder
requesting that the Company effect the registration under the Securities Act of
any or all of the Registrable Securities held by such Holder, which notice (a
"Demand Registration Notice") shall specify the intended method or methods of
disposition of such Registrable Securities, the Company shall use its Best
Efforts to effect, in the manner set forth in Section 5, the registration under
the Securities Act of such Registrable Securities for disposition in accordance
with the intended method or methods of disposition stated in such request,
provided that:
(i) if prior to receipt of a Demand Registration
Notice, the Company had commenced a financing plan and if such
financing plan is an underwritten offering, and, in the good-faith
business judgment of the Company's underwriter, a registration at the
time and on the terms requested would materially and adversely affect
or interfere with such financing plan of the Company or its
subsidiaries (a "Transaction Blackout"), the Company shall not be
required to effect a registration pursuant to this Section 2(a) until
the earliest of (A) the abandonment of such offering, (B) 90 days after
the termination of such offering, (C) the termination of any "hold
back" period obtained by the underwriter(s) of such offering from any
person in connection therewith or (D) 180 days after receipt by the
Holder requesting registration of the written notice from the Company
referred to above in this subsection (i);
(ii) if, while a registration request is pending
pursuant to this Section 2(a), the Company, with the prior approval of
a majority of the Company's Board of Directors, may delay commencing to
effect such registration until ninety (90) days after receipt of notice
of such request if the disinterested members of the Board of Directors
determine, in good faith, that the filing of a registration statement
at the time of such request would be materially detrimental to the
Company, provided that the Company shall not
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be permitted to delay a requested registration in reliance on this
clause (ii) more than once in any 12-month period; and
(iii) the Company shall not be obligated to file a
registration statement relating to a registration request pursuant to
this Section 2(a): (A) within a period of six months after the
effective date of any other registration statement of the Company
demanded pursuant to this Section 2(a); or (B) if such registration
request is for a number of Registrable Securities that represent in the
aggregate (on an as converted basis) less than the lesser of: (x) one
million (1,000,000) shares of Common Stock and (y) the remaining number
of shares of Common Stock owned by the Investor and its Affiliates.
(b) Notwithstanding any other provision of this Agreement
to the contrary, a registration requested by a Holder pursuant to this Section 2
shall not be deemed to have been effected (and, therefore, not requested for
purposes of Section 2(a)): (i) if it is withdrawn based upon material adverse
information relating to the Company; or (ii) if after it has become effective
such registration is interfered with by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court for any
reason other than a misrepresentation or an omission by such Holder and, as a
result thereof, less than 90% of the Registrable Securities requested to be
registered can be completely distributed in accordance with the plan of
distribution set forth in the related registration statement.
(c) In the event that any registration pursuant to this
Section 2 shall involve, in whole or in part, an underwritten offering, the
Holder initiating the demand pursuant to Section 2(a) shall have the right to
designate an underwriter as the sole lead managing underwriters of such
underwritten offering, subject to the Company's consent which shall not be
unreasonably withheld.
(d) Holders other than the Holder initiating the demand
pursuant to Section 2(a) shall have the right to include their shares of
Registrable Securities in any registration pursuant to Section 2(a); provided
that the Investor may exclude participation by other Holders in connection with
registrations pursuant to two demands (no two of which can be in consecutive
years). In connection with those registrations in which multiple Holders
participate, in the event such registration involves an underwritten offering
and the Holder initiating demand pursuant to Section 2(a) is advised in writing
(with a copy to the Company) by the lead managing underwriter designated by such
Holder pursuant to Section 2(c) that, in such firm's good-faith opinion,
marketing factors require a limitation on the number of shares to be
underwritten, the number of shares to be included in the underwriting and
registration shall be allocated pro rata among the Holders on the basis of the
shares of Registrable Securities held by each such Holder.
(e) The Company shall have the right to cause the
registration of additional securities for sale for the account of any person
(including the Company) in any
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registration of Registrable Securities requested by a Holder pursuant to Section
2(a); provided that the Company shall not have the right to cause the
registration of such additional securities if such Holder is advised in writing
(with a copy to the Company) by the lead managing underwriter designated by the
Holder pursuant to Section 2(c) that, in such firm's good-faith opinion,
registration of such additional securities would materially and adversely affect
the offering and sale of the Registrable Securities then contemplated by such
Holder.
(f) In the event that any Demand Registration Notice
includes a request for registration of the Warrant (or any portion thereof), the
Company may elect, by written notice (the "Election Notice") to the Investor
given within five (5) business days of the Company's receipt of such Demand
Registration Notice, to purchase the Warrant (or such portion thereof) in lieu
of proceeding with the registration of the Warrant pursuant to this Section 2.
On the third (3rd) business day following the Company's delivery to such Holder
of the Election Notice, the Company shall pay to the Holder by wire transfer of
immediately available funds an amount equal to (i) the average of the Closing
Prices (as defined in the Warrant) of the Common Stock for the twenty (20)
consecutive Trading Days (as defined in the Certificate of Designation of the
Series A Preferred Stock) preceding the date of delivery of the Demand
Registration Notice, multiplied by (ii) the total number of shares of Common
Stock that would be issuable upon conversion of the shares of Series A Preferred
Stock represented by the Warrant (or such portion thereof) less the number of
shares of Common Stock with an aggregate Trading Price (as defined in the
Warrant) as of the date of the Demand Registration Notice equal to the Warrant
Price (as defined in the Warrant) for the Warrant (or such portion thereof).
3. PIGGYBACK REGISTRATION. At any time if the Company
proposes to register any of its Common Stock or any other of its common equity
securities (collectively, "Other Securities") under the Securities Act (other
than a registration on Form S-4 or S-8 or any successor form thereto), whether
or not for sale for its own account, in a manner which would permit registration
of Registrable Securities for sale for cash to the public under the Securities
Act, it will each such time give prompt written notice to each Holder of its
intention to do so as soon as practicable but in any event at least ten (10)
business days prior to the anticipated filing date of the registration statement
relating to such registration. Such notice shall offer each such Holder the
opportunity to include in such registration statement such number of Registrable
Securities as each such Holder may request. Upon the written request (a
"Piggyback Registration Request") of any such Holder made within five (5)
business days after the receipt of the Company's notice (which request shall
specify the number of Registrable Securities intended to be disposed of and the
intended method of disposition thereof), the Company shall effect, in the manner
set forth in Section 5, in connection with the registration of the Other
Securities, the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register, to the extent
required to permit the disposition (in accordance with such intended methods
thereof) of the Registrable Securities so requested to be registered, provided
that:
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(a) if, at any time after giving such written notice of
its intention to register any of its securities and prior to the effective date
of the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such securities, the
Company may, at its election, give written notice of such determination to each
holder of Registrable Securities and thereupon shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith as provided in Section 4), without prejudice, however, to
the rights of Stockholders to request that such registration be effected as a
registration under Section 2;
(b) (i) if the registration referred to in the first
sentence of this Section 3 is to be an underwritten primary registration on
behalf of the Company, and the managing underwriter advises the Company in
writing that, in such firm's opinion, such offering would be materially and
adversely affected by the inclusion therein of the Registrable Securities
requested to be included therein, the Company shall include in such
registration: (1) first, all securities the Company proposes to sell for its own
account (the "Company Securities") and (2) second, up to the full amount of
securities (including Registrable Securities) in excess of the number or dollar
amount of the Company Securities, which, in the good-faith opinion of such
managing underwriter, can be so sold without materially and adversely affecting
such offering (and, if less than the full number of such securities, allocated
pro rata among the Holders and Other Holders (as defined below) of such
securities on the basis of the number of securities (including Registrable
Securities) requested to be included therein by each such Holder and Other
Holder) and (ii) if the registration referred to in the first sentence of this
Section 3 is to be an underwritten secondary registration on behalf of holders
of securities (other than Registrable Securities) of the Company (the "Other
Holders"), and the managing underwriter advises the Company in writing that in
their good-faith opinion such offering would be materially and adversely
affected by the inclusion therein of the Registrable Securities requested to be
included therein, the Company shall include in such registration: (1) first, all
securities that the Other Holder who made the initial demand for such
registration proposes to sell and (2) second, up to the full amount of
securities (including Registrable Securities) in excess of the number or dollar
amount of the securities set forth in the preceding clause (1), which, in the
good-faith opinion of such managing underwriter, can be so sold without
materially and adversely affecting such offering (and, if less than the full
number of such securities, allocated pro rata among the Holders and the
remaining Other Holders of such securities on the basis of the number of
securities (including Registrable Securities) requested to be included therein
by each Holder and each remaining Other Holder);
(c) the Company shall not be required to effect any
registration of Registrable Securities under this Section 3 incidental to the
registration of any of its securities in connection with mergers, acquisitions,
dividend reinvestment plans or stock option or other executive or employee
benefit or compensation plans; and
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(d) no registration of Registrable Securities effected
under this Section 3 shall relieve the Company of its obligation to effect a
registration of Registrable Securities pursuant to Section 2 hereof.
(e) In the event that any Piggyback Registration Request
includes a request for registration of the Warrant (or any portion thereof), the
Company may elect, by written notice (the "Election Notice") to the Investor
given within five (5) business days of the Company's receipt of such Piggyback
Registration Request, to purchase the Warrant (or such portion thereof) in lieu
of proceeding with the registration of the Warrant pursuant to this Section 3.
On the third (3rd) business day following the Company's delivery to such Holder
of the Election Notice, the Company shall pay to the Holder by wire transfer of
immediately available funds an amount equal to (i) the average of the Closing
Prices (as defined in the Warrant) of the Common Stock for the twenty (20)
consecutive Trading Days (as defined in the Certificate of Designation of the
Series A Preferred Stock) preceding the date of delivery of the Piggyback
Registration Request, multiplied by (ii) the total number of shares of Common
Stock that would be issuable upon conversion of the shares of Series A Preferred
Stock represented by the Warrant (or such portion thereof) less the number of
shares of Common Stock with an aggregate Trading Price (as defined in the
Warrant) as of the date of the Piggyback Registration Request equal to the
Warrant Price (as defined in the Warrant) for the Warrant (or such portion
thereof).
4. EXPENSES. The Company agrees to pay all Registration
Expenses with respect to an offering pursuant to Section 2 and Section 3 hereof.
5. REGISTRATION AND QUALIFICATION.
(a) If and whenever the Company is required to use its
Best Efforts to effect the registration of any Registrable Securities under the
Securities Act as provided in Section 2 or 3 hereof, the Company shall:
(i) prepare and file a registration statement under the
Securities Act relating to the Registrable Securities to be offered as
soon as practicable, but in no event later than 30 days (60 days if the
applicable registration form is other than Form S-3) after the date
notice is given, and use its Best Efforts to cause the same to become
effective as promptly as practicable;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to (x) keep such registration
statement effective until the earlier of such time as all of such
Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the Holder or Holders thereof set
forth in such registration statement or the expiration of nine months
after such registration statement becomes effective and (y) comply with
the provisions of the Securities Act;
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(iii) furnish to the Holders and to any underwriter of
such Registrable Securities such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of
the prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with
the requirements of the Securities Act, and such other documents, as
the Holders or such underwriter may reasonably request in order to
facilitate the public sale of the Registrable Securities, and a copy of
any and all transmittal letters or other correspondence to, or received
from, the SEC or any other governmental agency or self-regulatory body
or other body having jurisdiction (including any domestic or foreign
securities exchange) relating to such offering;
(iv) unless the exemption from state regulation of
securities offerings under Section 18 of the Securities Act applies,
use its Best Efforts to register or qualify all Registrable Securities
covered by such registration statement under the securities or blue sky
laws of such jurisdictions as the Holders or any underwriter of such
Registrable Securities shall request, and use its Best Efforts to
obtain all appropriate registrations, permits and consents required in
connection therewith, and do any and all other acts and things which
may be necessary or advisable to enable the Holders or any such
underwriter to consummate the disposition in such jurisdictions of its
Registrable Securities covered by such registration statement;
(v) furnish to each Holder selling Registrable
Securities by means of such registration (each a "Selling Holder"), at
such Selling Holder's request, a signed counterpart, addressed to such
Selling Holder, of (x) an opinion of counsel for the Company, dated the
effective date of such registration statement (or, if such registration
includes an underwritten public offering, dated the date of the closing
under the underwriting agreement speaking both as of the effective date
of the registration statement and the date of the closing under the
underwriting agreement) and (y) a "cold comfort" letter dated the
effective date of such registration statement (and, if such
registration statement includes an underwritten public offering, dated
the date of the closing under the underwriting agreement) signed by the
independent public accountants who have certified the Company's
financial statements included in such registration statement, covering
substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of
such accountants' letter, with respect to events subsequent to the date
of such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to underwriters
in underwritten public offerings of securities and, in the case of the
accountants' letter, such other financial matters, as such Selling
Holder may reasonably request;
(vi) immediately notify the Selling Holders in writing
(x) at any time when a prospectus relating to a registration pursuant
to Section 2 or 3 hereof is required to be delivered under the
Securities Act of the happening of any event as a
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result of which the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and (y) of any request by
the SEC or any other regulatory body or other body having jurisdiction
for any amendment of or supplement to any registration statement or
other document relating to such offering, and in either such case (x)
or (y) at the request of the Selling Holders, subject to Section 4
hereof, prepare and furnish to the Selling Holders a reasonable number
of copies of a supplement to or an amendment of such prospectus as may
be necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an untrue
statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light
of the circumstances under which they are made, not misleading;
(vii) otherwise use its Best Efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
securities holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months, but not
more than eighteen (18) months, beginning with the first month of the
first fiscal quarter after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act;
(viii) use its Best Efforts to list such Registrable
Securities on each securities exchange on which shares of Common Stock
of the Company are then listed (including NASDAQ), if such securities
are not already so listed and if such listing is then permitted under
the rules of such exchange, and, if necessary, provide a transfer agent
and registrar for such Registrable Securities not later than the
effective date of such registration statement, with all expenses in
connection therewith to be paid in accordance with Section 4 hereof;
and
(ix) furnish unlegended certificates representing
ownership of the Registrable Securities being sold in such
denominations as shall be requested by the Selling Holders or the
underwriters with expenses therewith to be paid in accordance with
Section 4 hereof.
(b) The Holder of Registrable Securities on whose behalf
Registrable Securities are to be distributed by one or more underwriters shall
be parties to any underwriting agreements relating to the distribution of such
Registrable Securities and the representations and warranties by, and the other
agreements on the part of, the Company to and from the benefit of such
underwriters, shall also be made to and for the benefit of such Holders of
Registrable Securities.
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6. UNDERWRITING, DUE DILIGENCE.
(a) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration requested under
this Agreement, the Company shall enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Company and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, indemnities and contribution
substantially to the effect and to the extent provided in Section 7 hereof and
the provision of opinions of counsel and accountants' letters to the effect and
to the extent provided in Section 5(a)(v) hereof. The Selling Holders on whose
behalf the Registrable Securities are to be distributed by such underwriters
shall be parties to any such underwriting agreement and the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters, shall also be made to and for the benefit of
such Selling Holders. Such underwriting agreement shall also contain such
representations and warranties by the Selling Holders on whose behalf the
Registrable Securities are to be distributed as are customarily contained in
underwriting agreements with respect to secondary distributions. Selling Holders
may require that any additional securities included in an offering proposed by a
Holder be included on the same terms and conditions as the Registrable
Securities that are included therein.
(b) In the event that any registration pursuant to Section
3 shall involve, in whole or in part, an underwritten offering, the Company may
require the Registrable Securities requested to be registered pursuant to
Section 3 to be included in such underwriting on the same terms and conditions
as shall be applicable to the other securities being sold through underwriters
under such registration. If requested by the underwriters for such underwritten
offering, the Selling Holders on whose behalf the Registrable Securities are to
be distributed shall enter into an underwriting agreement with such
underwriters, such agreement to contain such representations and warranties by
the Selling Holders and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary distributions,
including, without limitation, indemnities and contribution substantially to the
effect and to the extent provided in Section 7 hereof. Such underwriting
agreement shall also contain such representations and warranties by the Company
and such other person or entity for whose account securities are being sold in
such offering as are customarily contained in underwriting agreements with
respect to secondary distributions.
(c) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act, the Company shall give the Holders of such Registrable Securities and the
underwriters, if any, and their respective counsel and accountants, such
reasonable and customary access to its books and records and such opportunities
to discuss the business of the Company with its officers and the independent
public accountants who have certified the Company's financial statements as
shall be necessary, in the opinion of such Holder and such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
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7. INDEMNIFICATION AND CONTRIBUTION.
(a) In the case of each offering of Registrable Securities
made pursuant to this Agreement, the Company agrees to indemnify and hold
harmless each Holder, its officers and directors, each underwriter of
Registrable Securities so offered and each person, if any, who controls any of
the foregoing persons within the meaning of the Securities Act, from and against
any and all claims, liabilities, losses, damages, expenses and judgments, joint
or several, to which they or any of them may become subject, under the
Securities Act or otherwise, including any amount paid in settlement of any
litigation commenced or threatened, and shall promptly reimburse them, as and
when incurred, for any reasonable legal or other expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
such losses, claims, damages, liabilities or actions shall arise out of, or
shall be based upon, any untrue statement or alleged untrue statement of a
material fact contained in the registration statement (or in any preliminary or
final prospectus included therein) or any amendment thereof or supplement
thereto, or in any document incorporated by reference therein, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the Company shall not be liable to a particular Holder in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement, or
any omission, if such statement or omission shall have been made in reliance
upon and in conformity with information relating to such Holder furnished to the
Company in writing by or on behalf of such Holder specifically for use in the
preparation of the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement thereto.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of a Holder and shall survive the transfer of
such securities. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to each Holder, its officers and
directors, underwriters of the Registrable Securities or any controlling person
of the foregoing; provided, further, that, as to any underwriter or any person
controlling any underwriter, this indemnity does not apply to any loss,
liability, claim, damage or expense arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission in any
preliminary prospectus if a copy of a prospectus was not sent or given by or on
behalf of an underwriter to such person asserting such loss, claim, damage,
liability or action at or prior to the written confirmation of the sale of the
Registrable Securities as required by the Securities Act and such untrue
statement or omission had been corrected in such prospectus.
(b) In the case of each offering made pursuant to this
Agreement, each Holder of Registrable Securities included in such offering, by
exercising its registration rights hereunder, agrees to indemnify and hold
harmless the Company, its officers and directors and each person, if any, who
controls any of the foregoing within the meaning of the Securities Act (and if
requested by the underwriters, each underwriter who participates in the offering
and each person, if any, who controls any such underwriter within the meaning of
the Securities Act), from and against any and all claims, liabilities, losses,
damages,
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expenses and judgments, joint or several, to which they or any of them may
become subject under the Securities Act or otherwise, including any amount paid
in settlement of any litigation commenced or threatened, and shall promptly
reimburse them, as and when incurred, for any legal or other expenses incurred
by them in connection with investigating any claims and defending any actions,
insofar as any such losses, claims, damages, liabilities or actions shall arise
out of, or shall be based upon, any untrue statement or alleged untrue statement
of a material fact contained in the registration statement (or in any
preliminary or final prospectus included therein) or any amendment thereof or
supplement thereto, or any omission or alleged omission to state therein a
material fact relating to the Holder required to be stated therein or necessary
to make the statements therein not misleading, but in each case only to the
extent that such untrue statement of a material fact contained in, or such
material fact relating to the Holder is omitted from, information relating to
such Holder furnished in writing to the Company by or on behalf of such Holder
specifically for use in the preparation of such registration statement (or in
any preliminary or final prospectus included therein). The foregoing indemnity
is in addition to any liability which such Holder may otherwise have to the
Company, or any of its directors, offices or controlling persons; provided,
however, that, as to any underwriter or any person controlling any underwriter,
this indemnity does not apply to any loss, liability, claim, damage or expense
wising out of or based upon any untrue statement or alleged untrue statement or
omission or alleged omission in any preliminary prospectus if a copy of a
prospectus was not sent to given by or on behalf of an underwriter to such
person asserting such loss, claim damage, liability or action at or prior to the
written confirmation of the sale of the Registrable Securities as required by
the Securities Act and such untrue statement or omission had been corrected in
such prospectus; and provided, further, that in no event shall any such Holder
be liable for any amount in excess of the net proceeds received from the sale of
the Registrable Securities by such Holder in the subject offering.
(c) Procedure for Indemnification. Each party indemnified
under paragraph (a) or (b) of this Section 7 shall, promptly after receipt of
notice of any claim or the commencement of any action against such indemnified
party in respect of which indemnity may be sought, notify the indemnifying party
in writing of the claim or the commencement thereof; provided that the failure
to notify the indemnifying party shall not relieve it from any liability which
it may have to an indemnified party on account of the indemnity agreement
contained in paragraph (a) or (b) of this Section 7, except to the extent the
indemnifying party was prejudiced by such failure, and in no event shall relieve
the indemnifying party from any other liability which it may have to such
indemnified party. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of
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investigation; provided that each indemnified party, its officers and directors,
if any, and each person, if any, who controls such indemnified party within the
meaning of the Securities Act, shall have the right to employ separate counsel
reasonably approved by the indemnifying party to represent them if the named
parties to any action (including any impleaded parties) include both such
indemnified party and an indemnifying party or an affiliate of an indemnifying
party, and such indemnified party shall have been advised by counsel either (i)
that there may be one or more legal defenses available to such indemnified party
that are different from or additional to those available to such indemnifying
party or such affiliate or (ii) a conflict may exist between such indemnified
party and such indemnifying party or such affiliate, and in that event the fees
and expenses of one such separate counsel for all such indemnified parties shall
be paid by the indemnifying party. An indemnified party will not enter into any
settlement agreement which is not approved by the indemnifying party, such
approval not to be unreasonably withheld. The indemnifying party may not agree
to any settlement of any such claim or action which provides for any remedy or
relief other than monetary damages for which the indemnifying party shall be
responsible hereunder, without the prior written consent of the indemnified
party, which consent shall not be unreasonably withheld. In any action hereunder
as to which the indemnifying party has assumed the defense thereof with counsel
reasonably satisfactory to the indemnified party, the indemnified party shall
continue to be entitled to participate in the defense thereof, with counsel of
its own choice, but, except as set forth above, the indemnifying party shall not
be obligated hereunder to reimburse the indemnified party for the costs thereof.
In all instances, the indemnified party shall cooperate fully with the
indemnifying party or its counsel in the defense of each claim or action.
If the indemnification provided for in this Section 7 shall
for any reason be unavailable to an indemnified party in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
herein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative
fault of the indemnifying party on the one hand and the indemnified party on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party on the one hand or the indemnified party on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission,
but not by reference to any indemnified party's stock ownership in the Company.
In no event, however, shall a Holder be required to contribute in excess of the
amount of the net proceeds received by such Holder in connection with the sale
of Registrable Securities in the offering which is the subject of such loss,
claim, damage or liability. The amount paid or payable by an indemnified party
as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this paragraph shall be deemed to include, for
purposes of this paragraph, any legal or
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other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claims. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
8. RULE 144. The Company shall take such measures and file
such information, documents and reports as shall be required by the SEC as a
condition to the availability of Rule 144.
9. HOLDBACK.
(a) Each Holder agrees if so required by the managing
underwriter, not to sell, make any short sale of, loan, grant any option for the
purchase of, effect any public sale or distribution of or otherwise dispose of
any securities of the Company, during the 30 days prior to and the 90 days after
any underwritten registration pursuant to Section 2 or 3 hereof has become
effective (or such shorter period as may be required by the underwriter), except
as part of such underwritten registration. The Company may legend and may impose
stop transfer instructions on any certificate evidencing Registrable Securities
relating to the restrictions provided for in this Section 9.
(b) The Company agrees, if so required by the managing
underwriter, not to sell, make any short sale of, loan, grant any option for the
purchase of (other than pursuant to employee benefit plans), effect any public
sale or distribution of or otherwise dispose of its equity securities or
securities convertible into or exchangeable or exercisable for any such
securities during the 30 days prior to and the 90 days after any underwritten
registration pursuant to Section 2 or 3 hereof has become effective, except as
part of such underwritten registration and except pursuant to registrations on
Form S-4, S-8 or any successor or similar forms thereto.
10. TRANSFER OF REGISTRATION RIGHTS.
(a) A Holder may transfer all or any portion of its rights
under this Agreement to any transferee of Registrable Securities (each, a
"transferee"). The Holder making such transfer shall promptly notify the Company
in writing stating the name and address of any transferee and identifying the
amount of Registrable Securities with respect to which the rights under this
Agreement are being transferred and the nature of the rights so transferred. In
connection with any such transfer, the term "Holder" as used in this Agreement
shall, where appropriate to assign the rights and obligations of a Holder
hereunder to such direct transferee, be deemed to refer to the transferee holder
of such Registrable Securities.
(b) After any such transfer, the Holder making such
transfer shall retain its rights under this Agreement with respect to all other
Registrable Securities still owned by such Holder.
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(c) Upon the request of the Holder making such transfer,
the Company shall execute a Registration Rights Agreement with such transferee
or a proposed transferee substantially similar to this Agreement.
11. MISCELLANEOUS.
(a) Injunctions. Each party acknowledges and agrees that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. Therefore, each party shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any court having
jurisdiction, such remedy being in addition to any other remedy to which such
party may be entitled at law or in equity.
(b) Severability. If any term or provision of this
Agreement shall be held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms and provisions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and each of the parties shall use its Best Efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term or provision.
(c) Further Assurances. Subject to the specific terms of
this Agreement, each of the parties hereto shall make, execute, acknowledge and
deliver such other instruments and documents, and take all such other actions,
as may be reasonably required in order to effectuate the purposes of this
Agreement and to consummate the transactions contemplated hereby.
(d) Waivers, etc. No failure or delay on the part of
either party (or the intended third-party beneficiaries referred to herein) in
exercising any power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power preclude
any other or further exercise thereof or the exercise of any other right or
power. No modification or waiver of any provision of this Agreement nor consent
to any departure therefrom shall in any event be effective unless the same shall
be in writing and signed by an authorized officer of each of the parties, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given.
(e) Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties, whether
written or oral, with respect to the subject matter hereof. The paragraph
headings contained in this Agreement are for reference purposes only, and shall
not affect in any manner the meaning or interpretation of this Agreement.
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(f) Counterparts. For the convenience of the parties, this
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original but all of which together shall be one and the same
instrument.
(g) Amendment. This Agreement may be amended only by a
written instrument duly executed by an authorized officer of the Company and an
authorized partner of the Investor.
(h) Notices. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing and shall be
deemed given when received if delivered personally, on the next business day if
sent by overnight courier for next business day delivery (providing proof of
delivery), when confirmation is received, if sent by facsimile or in 5 business
days if sent by U.S. registered or certified mail, postage prepaid (return
receipt requested) to the other parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to Investor, to:
The Yucaipa Companies
10000 Santa Monica Blvd., 5th Floor
Los Angeles, California 90067
Attn: Robert Bermingham
Facsimile: 310-789-7201
with a copy to:
Munger, Tolles & Olson LLP
355 South Grand Avenue, 35th Floor
Los Angeles, California 90071-1560
Attn: Judith T. Kitano
Facsimile: 213-687-3702
(b) if to the Company, to:
Cyrk, Inc.
3 Pond Road
Gloucester, Massachusetts 01930
Attn:
Facsimile:
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with a copy to:
Choate, Hall & Stewart
Exchange Place
53 State Street
Boston, Massachusetts 02109
Attn: Cameron Read
Facsimile: 617-248-4000
(i) Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware regardless
of the laws that might otherwise govern under applicable principles of conflicts
of laws thereof.
(j) Term. This Agreement shall remain in full force and
effect until there are no Registrable Securities outstanding or until terminated
by the mutual agreement of the Company and the Investor.
(k) Assignment. Except as provided herein, the parties may
not assign their rights under this Agreement and the Company may not delegate
its obligations under this Agreement.
(l) Priority of Rights. The Company agrees that it shall
not grant any registration rights to any third party unless such rights are
expressly made subject to the rights of the Holders in a manner consistent with
this Agreement. The Company also agrees that it shall not grant any Holder any
registration rights which are senior to or take priority over the registration
rights granted to all Holders under this Agreement.
(m) Construction. In entering into this Agreement, each
party represents and warrants that such party does so freely and voluntarily,
after having had the opportunity to meet and confer with such party's respective
attorneys regarding the contents and legal effect of this Agreement. Each party
represents and warrants that such party has full power and authority to enter
into and execute this Agreement. Every covenant, term, and provision of this
Agreement shall be construed simply according to its fair meaning and not
strictly for or against any party. In the event any claim is made by any party
relating to any conflict, omission, or ambiguity in this Agreement, no
presumption or burden of proof or persuasion shall be implied by virtue of the
fact that this Agreement was prepared by or at the request of a particular party
or such party's counsel.
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IN WITNESS WHEREOF, the Investor and the Company have caused
this Agreement to be duly executed by their authorized representative as of the
date first above written.
OVERSEAS TOYS, L.P.
By: OA3, L.L.C., its General Partner
--------------------------------------
By: Robert Bermingham
Its: Secretary
CYRK, INC.,
By: /s/ Patrick D. Brady
Name: Patrick D. Brady
Title: Chief Executive Officer and President
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