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REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is entered into as of
this 9th day of June, 1997 by and among Cyrk, Inc., a Delaware corporation (the
"Company"), Allan Brown and Eric Stanton.
Introduction
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The parties to this Agreement, along with Simon Marketing, Inc., a Nevada
corporation, and SMI Merger, Inc., a Delaware corporation, are parties to an
Agreement and Plan of Merger dated as of May 7, 1997 (as amended from time to
time, the "Merger Agreement"), pursuant to which, INTER ALIA, Allan Brown and
Eric Stanton have acquired, or will receive, shares of common stock, par value
$.01 per share (the "Common Stock"), of the Company. The execution of this
Agreement is a condition precedent to the Closing of the transaction
contemplated under the Merger Agreement and to acquire the shares of Common
Stock. Capitalized terms used herein and not otherwise defined shall have the
meanings given to them in the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
Section 1. Demand Registration Rights.
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(a) If, at any time commencing on the second anniversary of the
Closing Date or any earlier date pursuant to which the Merger will continue to
qualify as a reorganization within the meaning of Section 368(a) of the Code (as
determined by the Company and its counsel), Allan Brown or Eric Stanton request
that the Company file a registration statement under the Securities Act of 1933,
as amended (the "Act"), for all or part of the shares of Common Stock held by
Allan Brown and/or Eric Stanton on the date of such request (including, without
limitation, any shares received by Allan Brown or Eric Stanton as an additional
payment pursuant to Section 1.05 of the Merger Agreement), provided that the
number of shares covered by such request equals or exceeds 250,000 shares, the
Company shall use its best efforts to register under the Act the shares of
Common Stock held by Allan Brown or Eric Stanton requested to be registered in
accordance with the procedures outlined in Section 4 hereof. The Company shall
effect an aggregate maximum of three such demand registrations, provided that no
such demand may be requested within six months of any prior demand; PROVIDED,
further, that if the Company defers any such registration request (an "Initial
Registration Request") pursuant to Section 1(b)(i), then the Initial
Registration Request and such registration made
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following such deferral but initiated by the Initial Registration Request shall,
together, constitute one demand registration hereunder.
(b) With respect to each demand registration right exercised by Allan
Brown pursuant to Section 1(a) hereof, the Company hereby agrees to promptly
give notice of the exercise of such demand registration right (a "Demand
Registration Notice") to Eric Stanton. With respect to each demand registration
right exercised by Eric Stanton pursuant to Section 1(a) hereof, the Company
hereby agrees to promptly give a Demand Registration Notice to Allan Brown. Upon
receipt by Allan Brown or Eric Stanton (the "Notice Recipient") of a Demand
Registration Notice, the Notice Recipient shall have the right to participate in
such demand registration by providing notice of its intent to so participate to
the Company within fifteen (15) days following the date of receipt by the Notice
Recipient of the Demand Registration Notice. The participation by the Notice
Recipient in such demand registration shall not constitute an additional demand
registration hereunder.
(c) If Allan Brown (without Eric Stanton) exercises the first two
demand registration rights pursuant to Section 1(a) hereof, then Eric Stanton
(but not Allan Brown) shall have the right to exercise the third demand
registration right pursuant to Section 1(a) hereof. If Eric Stanton (without
Allan Brown) exercises the first two demand registration rights pursuant to
Section 1(a) hereof, then Allan Brown (but not Eric Stanton) shall have the
right to exercise the third demand registration right pursuant to Section 1(a)
hereof.
(d) Notwithstanding the foregoing, (i) if the Company shall furnish to
such holder(s) requesting a registration statement pursuant to Section 1(a) a
certificate signed by an officer of the Company stating that in the good faith
judgment of the Company it would have a materially adverse impact on the
business of the Company and be materially adverse to its shareholders for such
registration statement to be filed and it is therefor essential to defer the
filing of such registration statement, the Company shall have the right to defer
such filing for a period of not more than 120 days from the date of the request
of such holder(s) requesting such registration and (ii) no holder shall be
allowed to exercise its registration rights set forth in Section 1(a) within 180
days from the date that the Company has registered any shares of Common Stock or
any securities similar to Common Stock for its own or others' account under the
Act (other than a registration statement on Form S-4 or S-8 or any substitute
form that may be adopted by the Securities and Exchange Commission (the
"Commission")).
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Section 2. Piggyback Registration Rights.
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(a) Whenever, at any time commencing on the second anniversary of the
Closing Date or any earlier date pursuant to which the Merger will continue to
qualify as a reorganization within the meaning of Section 368(a) of the Code (as
determined by the Company and its counsel), the Company proposes to register any
shares of Common Stock for its own or others' account under the Act, other than
a registration solely relating to employee benefit plans or a registration
solely relating to shares to be sold under Rule 145 under the Act, the Company
shall give Allan Brown and Eric Stanton prompt written notice of its intent to
do so no less than 30 days before the filing of any registration statement. Upon
the written request of either Allan Brown or Eric Stanton given within 15 days
after receipt of such notice, the Company shall, subject to Section 2(b), cause
to be included in such registration all of the shares of Common Stock held by
Allan Brown and/or Eric Stanton specified in such written request.
(b) If the Company is advised in writing in good faith by any managing
underwriter of the securities being offered pursuant to any registration
statement under this Section 2 that, because of marketing considerations, the
number of shares of Common Stock to be sold by persons other than the Company is
greater than the number of such shares which can be offered without materially
and adversely affecting the offering, the Company may reduce PRO RATA the number
of shares offered for the accounts of such persons (based upon the number of
shares requested by each such person to be included in the registration) to a
number deemed sufficient by such managing underwriter to eliminate the material
and adverse effect.
Section 3. Selection of Underwriter.
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(a) If the Company so requires, or if Allan Brown or Eric Stanton so
elects, the offering of shares of Common Stock held by them pursuant to Section
1 shall be in the form of a firm commitment underwritten offering. In such
event, (i) Allan Brown, Eric Stanton and the Company shall jointly select the
book-running and other managing underwriters in connection with such offering
and any additional investment bankers and managers to be used in connection with
such offering and (ii) the right of any holder to include his registrable shares
in such registration shall be conditioned upon such holder's participation in
such underwriting and the inclusion of such holder's registrable shares in the
underwriting to the extent provided herein.
(b) Holders of Common Stock other than Allan Brown and Eric Stanton
may request that their shares of Common Stock be included in any registration
requested under Section 1. If the underwriter managing the offering determines
that, because of
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marketing considerations, all of the shares of Common Stock requested to be
registered may not be included in the offering, then all holders of Common Stock
other than Allan Brown or Eric Stanton who have requested registration shall
participate in the offering PRO RATA based upon the number of shares of Common
Stock which they have requested to be so registered; PROVIDED that any such
reduction shall not apply to the shares of Common Stock held by Allan Brown or
Eric Stanton.
SECTION 4. REGISTRATION PROCEDURES. If and whenever the Company is required
by the provisions of this Agreement to use its best efforts to effect the
registration of any shares of Common Stock under the Act, the Company shall:
(a) as expeditiously as reasonably possible (and, in the case of a
registration under Section 1, within 60 days of any request thereunder) file
with the Commission a registration statement, in form and substance required by
the Act, with respect to such Common Stock and use its best efforts to cause
that registration statement to become effective;
(b) as expeditiously as reasonably possible, prepare and file with the
Commission any amendments and supplements to the registration statement and the
prospectus included in the registration statement as may be necessary to keep
the registration statement effective, in the case of a firm commitment
underwritten public offering, until completion of the distribution of all
securities described therein and, in the case of any other offering, until the
earlier of the sale of all Common Stock covered thereby or 120 days after the
effective date thereof;
(c) as expeditiously as reasonably possible, furnish to each holder
that requested that Common Stock be registered, such reasonable number of copies
of such registration statement, each amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by reference
therein) and the prospectus included in such registration statement, including
each preliminary prospectus, in conformity with the requirements of the Act, and
such other documents as such holder may reasonably request in order to
facilitate the public sale or other disposition of the Common Stock owned by
such holder;
(d) as expeditiously as reasonably possible, use its best efforts to
register or qualify the Common Stock covered by the registration statement for
offer and sale under the securities or blue sky laws of such jurisdictions in
the United States as the holders thereof shall reasonably request, and do any
and all other acts and things that may be necessary or desirable to enable the
holders thereof to consummate the public sale or other disposition in such
jurisdictions of the Common Stock owned by the holders; PROVIDED, HOWEVER, that
the Company
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shall not be required in connection with this paragraph (d) to qualify as a
foreign corporation or execute a general consent to service of process in any
jurisdiction;
(e) after the filing of the registration statement, promptly notify
the holder that requested that Common Stock be registered of any stop order
issued or, to the knowledge of the Company, threatened to be issued by the
Commission and use all commercially reasonable efforts to prevent the entry of
such stop order or to remove it if entered;
(f) in connection with each registration pursuant to Sections 1 and 2
above covering an underwritten public offering with the agreement of each
participating holder, enter into a written agreement with the managing
underwriter in such form and containing such provisions as are customary in the
securities business for such an arrangement between such underwriter and
companies of the Company's size and investment stature;
(g) furnish to each underwriter, if any, and the participating
holders, a legal opinion of its counsel and a comfort letter from its
independent certified public accountants, each in customary form and substance,
at such time or times as such documents are customarily provided in the type of
offering involved;
(h) as promptly as practicable, notify the holder that requested that
Common Stock be registered, at any time when a prospectus relating to the sale
of the Common Stock is required by law to be delivered in connection with sales
by an underwriter or dealer, of the occurrence of any event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of the registered Common Stock, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and as promptly as practicable make available to the
holder that requested that Common Stock be registered and to the underwriters
any such supplement or prospectus and, in the event that the Company shall give
such notice, the Company shall extend the period during which such registration
statement shall be maintained effective as provided in Section 4(b) hereof by
the number of days during the period from and including the date of the giving
of such notice to the date when the Company shall make available to such holder
such supplemented or amended prospectus;
(i) whenever the Company is registering any Common Stock under the Act
and a holder of Common Stock is selling securities under such registration or
determines that it may be a controlling person under the Act, keep such holder
advised in
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writing of the initiation, progress and completion of such registration, allow
such holder and such holders's counsel to participate in the preparation of the
registration statement and to have access to all relevant corporate records,
documents and information, include in the registration statement such
information as such holder may reasonably request and take all such other action
as such holder may reasonably request;
(j) as of the effective date of any registration statement relating
thereto, cause all such Common Stock to be listed on each securities exchange on
which similar securities issued by the Company are then listed, and, if not so
listed, to be listed on the NASDAQ National Market; and
(k) as of the effective date of any registration statement relating
thereto, provide a transfer agent and registrar for all such Common Stock.
Each holder of Common Stock included in a registration shall furnish to the
Company such information regarding such holder and the distribution proposed by
such holder as the Company may reasonably request in writing and as shall be
required in connection with the registration, qualification or compliance
referred to in this Agreement.
SECTION 5. EXPENSES. The Company shall pay all expenses incurred in
complying with this Agreement, including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, transfer taxes, fees
and expenses of counsel and independent certified public accountants for the
Company and the fees and expenses of one counsel selected by each holder of
Common Stock to represent him in connection with each such registration, state
securities and blue sky fees and expenses, and the expense of any special audits
incident to or required by any such registration, but excluding underwriting
discounts and selling commissions relating to the sale of the Common Stock. The
Company shall pay all internal Company expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties) incurred in complying with this Agreement.
SECTION 6. INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold harmless Allan Brown and Eric Stanton from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or prospectus relating to the Common Stock to be registered (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not
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misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished in writing to the Company by or on
behalf of Allan Brown or Eric Stanton expressly for use therein. The Company
also agrees to indemnify any underwriters of the Common Stock, their officers
and directors and each person who controls such underwriters on substantially
the same basis as that of the indemnification of Allan Brown and Eric Stanton
provided in this Section 6.
Section 7. Indemnification by Allan Brown and Eric Stanton.
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(a) Allan Brown agrees to indemnify and hold harmless the Company, its
officers and directors, and each person, if any, who controls the Company within
the meaning of the Act or the Securities Exchange Act of 1934, as amended, (the
"Exchange Act") to the same extent as the foregoing indemnity from the Company
to Allan Brown, but only with reference to information furnished in writing by
or on behalf of Allan Brown expressly for use in any registration statement or
prospectus relating to Common Stock to be registered, or any amendment or
supplement thereto, or any preliminary prospectus and not in reference to
information furnished in writing by or on behalf of Eric Stanton. Allan Brown
also agrees to indemnify and hold harmless the underwriters of the Common Stock,
their officers and directors and each person who controls such underwriters on
substantially the same basis as that of the indemnification of the Company
provided in this Section 7(a).
(b) Eric Stanton agrees to indemnify and hold harmless the Company,
its officers and directors, and each person, if any, who controls the Company
within the meaning of the Act or the Securities Exchange Act of 1934, as
amended, (the "Exchange Act") to the same extent as the foregoing indemnity from
the Company to Eric Stanton, but only with reference to information furnished in
writing by or on behalf of Eric Stanton expressly for use in any registration
statement or prospectus relating to Common Stock to be registered, or any
amendment or supplement thereto, or any preliminary prospectus and not in
reference to information furnished in writing by or on behalf of Allan Brown.
Eric Stanton also agrees to indemnify and hold harmless the underwriters of the
Common Stock, their officers and directors and each person who controls such
underwriters on substantially the same basis as that of the indemnification of
the Company provided in this Section 7(b).
SECTION 8. CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Section 6 or 7,
such person (the "Indemnified Party") shall promptly notify the person against
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whom such indemnity may be sought (the "Indemnifying Party") in writing and the
Indemnifying Party, upon the request of the Indemnified Party shall retain
counsel reasonably satisfactory to such Indemnified Party to represent such
Indemnified Party and any others the Indemnifying Party may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Indemnifying Party shall
have failed within a reasonable time after having been notified by the
Indemnified Party of the existence of such claim as provided in the preceding
sentence; (ii) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel or (iii) such Indemnified Party
shall have been advised in writing by his or its legal counsel that there may be
one or more legal defenses available to the Indemnified Party the assertion of
which would be materially adverse to the interests of the Indemnifying Party. It
is understood that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate law firm (in addition to any local
counsel) at any time for all such Indemnified Parties, and that all such fees
and expenses shall be reimbursed as they occur. In the case of any such separate
firm for the Indemnified Parties, such firm shall be designated in writing by
the Indemnified Parties. The Indemnifying Party shall not be liable for any
settlement or any proceeding effected without its written consent, but if
settled with such consent, or if there shall be a final judgment for the
plaintiff, the Indemnifying Party shall indemnify and hold harmless such
Indemnified Parties from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment. No Indemnifying Party shall
settle any action or claim without the consent of the Indemnified Party if such
settlement (i) does not provide for a full release of the Indemnified Party or
(ii) would adversely effect the Indemnified Party.
Section 9. Contribution.
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(a) If the indemnification provided for in this Agreement is
unavailable to the Indemnified Parties in respect of any losses, claims, damages
or liabilities referred to herein, then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, Allan Brown, Eric Stanton and the underwriters
from the offering of the securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
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appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company, Allan Brown, Eric Stanton and the
underwriters in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company, Allan
Brown, Eric Stanton and the underwriters shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and selling commissions but before deducting expenses) received by
each of the Company, Allan Brown, Eric Stanton and the total underwriting
discounts and commissions received by the underwriters, in each case as set
forth in the table on the cover page of the prospectus, with respect to the
aggregate public offering price of the securities. The relative fault of the
Company, Allan Brown, Eric Stanton and the underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
related to information supplied by such party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(b) The Company, Allan Brown and Eric Stanton agree that it would not
be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in Section 9(a). The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages or
liabilities referred to Section 9(a) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and
Allan Brown and Eric Stanton shall not be required to contribute any amount in
excess of the amount by which the net proceeds of the offering (before deducting
expenses) received by such person has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 10. REPORTS UNDER THE EXCHANGE ACT. With a view to making
available to the holders of Common Stock the benefits of
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Rule 144 promulgated under the Act and any other rule or regulation of the
Commission that may at any time permit a holder to sell securities of the
Company to the public without registration or pursuant to a registration on Form
S-3, the Company shall use its best efforts to satisfy the requirements of all
such rules and regulations now in effect or hereinafter adopted (including the
requirements for public information, registration under the Exchange Act and
timely reporting to the Commission). The Company shall furnish to each holder of
Common Stock, whenever requested, a written statement as to its compliance with
the reporting requirements of Rule 144, the Act and the Exchange Act, a copy of
its most recent annual or quarterly report, and such other reports and
information filed by the Company as Allan Brown and Eric Stanton may reasonably
request in connection with the sale of Common Stock without registration.
Section 11. Lock-up Agreement.
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(a) Subject to the subsequent sentence of this Section 11(a), Allan
Brown and Eric Stanton each agrees that in connection with any public offering
of the Company's Common Stock, and upon the request of the managing underwriter
in such offering, such holders will not sell, grant any option for the purchase
of, or otherwise dispose of any of the Company's securities held by such holder
(other than those included in such registration) without the prior written
consent of such underwriter, for such period of time as may be requested by such
underwriter (not to exceed 90 days after the effective date of such
registration). The obligation of Allan Brown and Eric Stanton under this Section
11 is conditional upon the agreement of all of the Company's officers and
directors to be bound by the terms of this Section 11.
(b) The Company agrees that in connection with any public offering of
any Common Stock or any securities similar to Common Stock, and upon the request
of the managing underwriter in such offering, the Company will not sell, grant
any option for the purchase of, or otherwise dispose of any Common Stock or any
securities similar to Common Stock (other than those included in such
registration) without the prior written consent of such underwriter, for such
period of time as may be requested by such underwriter (not to exceed 90 days
after the effective date of such registration).
SECTION 12. NOTICES. All notices, demands, requests or other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered in person, telecopied (which is confirmed) or by United States mail,
certified or registered with return receipt requested, or by nationally
recognized overnight courier service, to the addresses of the
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respective parties for notices as set forth in the Merger Agreement.
SECTION 13. ASSIGNMENT. The rights to cause the Company to register shares
pursuant to this Agreement, and all other rights of Allan Brown and Eric Stanton
hereunder, shall not be assignable or transferable to any other person or entity
without the Company's prior written consent; PROVIDED, HOWEVER, that the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective executors, administrators, heirs, successors and permitted
assigns of each of Allan Brown and Eric Stanton.
SECTION 14. MISCELLANEOUS. This Agreement shall survive indefinitely and
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
any applicable conflict of laws. If any provision of this Agreement is rendered
void, invalid or unenforceable by any court of law for any reason, such
invalidity or unenforceability shall not void or render invalid or unenforceable
any other provision of this Agreement. This Agreement may be changed, waived,
discharged or terminated only with the written consent of each party hereto.
This Agreement may be executed in one or more counterparts, and with counterpart
signature pages, each of which shall be an original, but all of which together
shall constitute one in the same Agreement.
SECTION 15. EFFECTIVENESS AND TERMINATION. This Agreement shall become
effective on the Closing of the Merger. This Agreement shall be deemed
terminated if the Merger Agreement is terminated pursuant to Section 8.01
thereof.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
CYRK, INC.
By: /s/ Gregory P. Shlopak
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Name:
Title:
/s/ Allan Brown
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Allan Brown
/s/ Eric Stanton
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Eric Stanton
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