EXHIBIT 10.1
GIGA INFORMATION GROUP, INC.
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
NOVEMBER 13, 1995
TABLE OF CONTENTS
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PAGE
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1. AGREEMENT TO PURCHASE AND SELL STOCK ........................ 1
1.1 Authorization .......................................... 1
1.2 Agreement to Purchase and Sell ......................... 1
2. CLOSING ..................................................... 2
2.1 The Closing ........................................... 2
2.2 Additional Closing .................................... 2
(a) Conditions of Additional Closing ................ 2
(b) Amendments ...................................... 2
(c) Status of New Investors ......................... 2
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY ............... 3
3.1 Organization, Good Standing and Qualification ......... 3
3.2 Authorization ......................................... 3
3.3 Valid Issuance of Preferred and Common Stock .......... 4
3.4 Capitalization ........................................ 4
(a) Preferred Stock ................................. 4
(b) Common Stock .................................... 4
(c) Options, Warrants, Reserved Shares .............. 4
(d) Outstanding Security Holders .................... 5
(e) Valid Issuance .................................. 5
3.5 Subsidiaries .......................................... 5
3.6 Governmental Consents ................................. 6
3.7 Contracts and Other Commitments ....................... 6
3.8 Litigation ............................................ 6
3.9 Invention Assignment and Confidentiality Agreement .... 6
3.10 Proprietary Assets .................................... 7
3.11 Compliance with Law and Charter Documents ............. 7
3.12 Registration Rights ................................... 7
3.13 Financial Statements .................................. 7
3.14 Disclosure ............................................ 8
3.15 Certain Actions ....................................... 8
3.16 Activities Since Balance Sheet Date ................... 8
3.17 Employee Benefit Plans ................................ 8
3.18 Tax Returns, Payments and Elections ................... 9
3.19 Related Party Transactions ............................ 9
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PAGE
4. REPRESENTATIONS WARRANTIES AND CERTAIN
AGREEMENTS OF INVESTORS ........................................ 9
4.1 Authorization ............................................ 9
4.2 Purchase for Own Account ................................. 9
4.3 Disclosure of Information ................................ 10
4.4 Investment Experience .................................... 10
4.5 Accredited Investor Status ............................... 10
4.6 Restricted Securities .................................... 10
4.7 Further limitations on Disposition ....................... 11
4.8 Legends .................................................. 11
4.9 Waiver of Conflicts ...................................... 12
5. CONDITIONS TO INVESTORS' OBLIGATIONS AT CLOSING ................ 12
5.1 Representations and Warranties True ...................... 13
5.2 Performance .............................................. 13
5.3 Restated Articles Effective .............................. 13
5.4 Compliance Certificate ................................... 13
5.5 Securities Exemptions .................................... 13
5.6 Proceedings and Documents ................................ 13
5.7 No Material Change ....................................... 13
5.8 Registration Rights Agreement; Voting Agreement; Co-Sale
Agreement ................................................ 13
5.9 Opinion of Counsel ....................................... 14
5.10 Directors ................................................ 14
5.11 Minimum Shares Purchased ................................. 14
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING ............. 14
6.1 Representations and Warranties ........................... 14
6.2 Payment of Purchase Price ................................ 14
6.3 Restated Certificate Effective ........................... 14
6.4 Securities Exemptions .................................... 14
6.5 Registration Rights Agreement ............................ 14
6.6 Minimum Shares Purchased ................................. 15
7. COVENANTS OF THE COMPANY ....................................... 15
7.1 Delivery of Financial Statements ......................... 15
7.2 Inspection ............................................... 16
8. MISCELLANEOUS .................................................. 16
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TABLE OF CONTENTS
(continued)
Page
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8.1 Survival of Warranties and Covenants ............. 16
8.2 Successors and Assigns ........................... 16
8.3 Governing Law .................................... 17
8.4 Counterparts ..................................... 17
8.5 Headings ......................................... 17
8.6 Notices .......................................... 17
8.7 Expenses ......................................... 17
8.8 No Finder's Fees ................................. 18
8.9 Amendments and Waivers ........................... 18
8.10 Severability ..................................... 18
8.11 Entire Agreement ................................. 18
8.12 Further Assurances ............................... 18
Exhibit A - Schedule of Investors
Exhibit B - Amended and Restated Certificate of Incorporation
Exhibit C - Schedule of Exceptions
Exhibit D - List of Stockholders
Exhibit E - List of Subsidiaries
Exhibit F - Non Competition Agreement
Exhibit G - Registration Rights Agreement
Exhibit H - Voting Agreement
Exhibit I - Co-Sale Agreement
Exhibit J - Opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
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GIGA INFORMATION GROUP, INC.
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
This SERIES B PREFERRED STOCK PURCHASE AGREEMENT (this "AGREEMENT") is
made and entered into as of November 13, 1995 by and among Giga Information
Group, Inc., a Delaware corporation (the "COMPANY"), and the parties listed on
the Schedule of Investors attached to this Agreement as Exhibit A (each
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hereinafter individually referred to as an "Investor" and collectively referred
to as the "INVESTORS").
RECITAL
A. The Company desires to sell to the Investors, and the Investors
desire to purchase from the Company, shares of the Company's Series B Preferred
Stock on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. AGREEMENT TO PURCHASE AND SELL STOCK.
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1.1 Authorization. As of the Closing (as defined below) the Company
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will have authorized the issuance, pursuant to the terms and conditions of this
Agreement, of the shares of the Company's Series B Preferred Stock, $.001 par
value (the "SERIES B STOCK") to be sold by it pursuant to this Agreement, having
the rights, preferences, privileges and restrictions set forth in the Amended
and Restated Certificate of Incorporation of the Company attached to this
Agreement as Exhibit B (the "RESTATED CERTIFICATE").
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1.2 Agreement to Purchase and Sell. The Company agrees to sell to
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each Investor at the Closing, and each Investor agrees, severally and not
jointly, to purchase from the Company at the Closing, the number of shares of
Series B Stock set forth beside such Investor's name on Exhibit A at a price of
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$3.50 per share. The shares of Series B Stock purchased and sold pursuant to
this Agreement will be collectively hereinafter referred to as the "PURCHASED
SHARES" and the shares of the Company's Common Stock, $.001 par value per share,
issuable upon conversion of the Purchased Shares will be hereinafter referred to
as the "CONVERSION SHARES".
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2. CLOSING.
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2.1 The Closing. The purchase and sale of the Purchased Shares will
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take place at the offices of ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Street Tower,
One Market, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. Pacific Time,
November 13, 1995 or at such other time and place as the Company and Investors
who have agreed to purchase a majority of the Purchased Shares listed on Exhibit
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A mutually agree (which time and place are referred to in this Agreement as the
"CLOSING"). At the Closing, the Company will deliver to each Investor a
certificate representing the number of Purchased Shares that such Investor has
agreed to purchase hereunder as shown on Exhibit A, and each Investor shall pay
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to the Company the full purchase price of such Purchased Shares, by (i) a check
payable to the Company's order, or (ii) wire transfer of funds to the Company.
2.2 Additional Closing.
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(a) Conditions of Additional Closing. At any time or times within
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thirty (30) days immediately following the Closing, the Company may, at one or
more closings (each an "ADDITIONAL CLOSING"), without obtaining the signature,
consent or permission of any of the Investors, offer and sell to other investors
("NEW INVESTORS"), at a price of not less than $3.50 per share, up to that
number of shares of Series B Stock that is equal to 5,142,856 shares of Series B
Stock less the number of shares of Series B Stock actually issued and sold by
the Company prior to such Additional Closing pursuant to this Agreement and upon
conversion of the Convertible Note (as defined in Section 3.4(c)). New Investors
may include persons or entities who are already Investors under this Agreement.
(b) Amendments. The Company and the New Investors purchasing Series B
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Stock at any Additional Closing will execute counterpart signature pages to this
Agreement, the Registration Rights Agreement, the Voting Agreement and the Co-
Sale Agreement (each as defined in Section 5.8), and such New Investors will,
upon delivery to the Company of such signature pages, become parties to, and
bound by, this Agreement, the Registration Rights Agreement, the Voting
Agreement and the Co-Sale Agreement, each to the same extent as if they had been
Investors at the Closing. Immediately after any Additional Closing, Exhibit A to
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this Agreement will be amended by the Company to list the New Investors
purchasing shares of Series B Stock hereunder and the number of shares of Series
B Stock purchased by each New Investor under this Agreement at the Additional
Closing.
(c) Status of New Investors. Upon the completion of the Additional
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Closing as provided in this Section 2, each New Investor will be deemed to be an
"INVESTOR" for all purposes of this Agreement, the Registration Rights
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Agreement and the Co-Sale Agreement, and a "SERIES B PURCHASER" for purposes of
the Voting Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
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represents and warrants to each Investor that, except as set forth in the
Schedule of Exceptions ("SCHEDULE OF EXCEPTIONS") attached to this Agreement as
Exhibit C the statements in the following paragraphs of this Section 3 are all
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true and correct in all material respects:
3.1 Organization, Good Standing and Qualification. The Company and
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each Significant Subsidiary (as defined below) is duly organized, validly
existing, and in good standing under the laws of its jurisdiction of
incorporation or organization, has all requisite corporate power and authority
to own and operate its properties and assets and to carry on its business as now
conducted and as proposed to be conducted, and, in the case of the Company, to
execute and deliver this Agreement, the Registration Rights Agreement and the
Voting Agreement, to issue and sell the Series B Stock, to issue the Conversion
Shares, and to carry out the provisions of this Agreement, the Registration
Rights Agreement, the Voting Agreement and the Restated Certificate. The
Company and each Significant Subsidiary are duly qualified to transact business
and are in good standing in each jurisdiction in which the failure so to qualify
would have a material adverse effect on the business, properties, financial
condition or prospects of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"). As used in this Agreement, the term "Significant
Subsidiary" shall have the meaning set forth in Regulation S-X under the
Securities Act of 1933, as amended (the "Securities Act"), except that all
references therein to 10% shall be deemed to refer to 20%; provided, that the
term "Significant Subsidiary" shall include ExperNet, Inc.
3.2 Authorization. All corporate action on the part of the Company
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and its officers, directors, and stockholders necessary for the authorization,
execution and delivery of this Agreement, the Registration Rights Agreement and
the Voting Agreement, the performance of all obligations of the Company
hereunder and thereunder, as the case may be, and the authorization, issuance,
sale, and delivery of the Purchased Shares and the authorization and
registration for issuance of Conversion Shares has been duly taken or will be
taken prior to the closing or the applicable Additional Closing, as the case may
be, and this Agreement, the Registration Rights Agreement and the Voting
Agreement constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their respective terms except
(i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement of creditors' rights
generally (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies, and (iii) to the
extent the indemnification provisions contained in the Registration Rights
Agreement may be limited by applicable federal or state securities laws.
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3.3 Valid Issuance of Preferred and Common Stock.
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(a) The Purchased Shares, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration expressed
herein, will be duly and validly issued, fully paid, and nonassessable, and will
be free of restrictions on transfer other than restrictions on transfer under
this Agreement, the Registration Rights Agreement and the Voting Agreement and
under applicable state and federal securities laws. The Conversion Shares have
been duly and validly reserved for issuance and, upon issuance in accordance
with the terms of the Restated Certificate, will be duly and validly issued,
fully paid, and nonassessable and will be free of restrictions on transfer other
than restrictions on transfer under this Agreement, the Registration Rights
Agreement and the Voting Agreement, and under applicable state and federal
securities laws.
(b) Based in part on the representation made by the Investors in
Section 4 hereof, the Purchased Shares and (assuming no change in applicable law
and no unlawful distribution of Purchased Shares by Investors or other parties)
the Conversion Shares will be issued in full compliance with applicable U.S.
state and federal securities laws (provided that with respect to the Conversion
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Shares, no commission or other remuneration is paid or given, directly or
indirectly, for soliciting the issuance of Conversion Shares upon the conversion
of the Purchased Shares and no additional consideration is paid for the
Conversion Shares other than surrender of the applicable Purchased Shares upon
conversion thereof in accordance with the Restated Certificate).
3.4 Capitalization. Immediately prior to the Closing the
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capitalization of the Company will consist of the following:
(a) Preferred Stock. A total of Ten Million (10,000,000) authorized
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shares of preferred stock, $.001 par value per share (the "PREFERRED STOCK"),
consisting of Six Hundred Fifty Thousand (650,000) shares designated as Series A
Preferred Stock (the "SERIES A STOCK"), not more than 590,000 of which will be
issued or outstanding and Six Million (6,000,000) shares designated as Series B
Preferred Stock ("SERIES B STOCK"), none of which will be issued and
outstanding. The rights of the Series A Stock are, and the rights, preferences
and privileges of the Series B Stock will be, as stated in the Restated
Certificate and as provided by law.
(b) Common Stock. A total of Twenty-Eight Million (28,000,000)
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authorized shares of common stock, $.001 par value per share (the "COMMON
STOCK"), of which not more than 6,172,000 shares will be issued and outstanding.
(c) Options, Warrants, Reserved Shares. Except for: (i) the
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conversion privileges of the Series A Stock and Series B Stock; (ii) the Five
Million
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(5,000,000) shares of Common Stock reserved for issuance under the Company's
1995 Stock Option/Stock Issuance Plan (of which Two Hundred Thousand (200,000)
shares have been issued and options have been granted to purchase an additional
One Million Seven Hundred Thirty-Two Thousand (1,732,000) shares); (iii) options
to purchase Seven Hundred Eighty Thousand (780,000) shares granted under
contractual arrangements and not under such plan; (iv) a Convertible Promissory
Note of the Company with an aggregate principal amount of $2,000,000 which is
convertible into Five Hundred Seventy-One Thousand Four Hundred Twenty-Eight
(571,428) shares of the Company's Series B Stock at the Closing (the
"CONVERTIBLE NOTE"); (v) warrants to purchase an aggregate of Two Hundred
Eighty-Five Thousand Seven Hundred Fourteen (285,714) shares of Series B Stock
issued in connection with the Convertible Note at a price equal to 66-2/3% of
the purchase price for the Purchased Shares; (vi) a warrant to purchase 100,000
shares of Series B Preferred Stock to be issued to ▇▇▇▇▇▇▇▇▇▇ Securities in
connection with its services as placement agent; (vii) a convertible note dated
April 5, 1995 payable to Friday Holdings, L.P.; and (viii) up to 160,000 shares
of Common Stock issuable to ▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to the terms of the Stock
Purchase Agreement dated July 6, 1995, between the Company and ▇▇. ▇▇▇▇▇▇▇;
there are not outstanding any options, warrants, rights (including conversion or
preemptive rights) or agreements for the purchase or acquisition from the
Company of any shares of its capital stock or any securities convertible into or
ultimately exchangeable or exercisable for any shares of the Company's capital
stock. Apart from the exceptions noted in this Section 3.4(c), and except for
rights of repurchase and rights of first refusal held by the Company to
repurchase shares of its stock issued to founders of the Company, no shares of
the Company's outstanding capital stock, or stock issuable upon exercise or
exchange of any outstanding options, warrants or rights, or other stock issuable
by the Company, are subject to any preemptive rights or rights of first refusal
or other rights to purchase such stock (whether in favor of the Company or any
other person), pursuant to any agreement or commitment of the Company, and, to
the Company's knowledge, no officer, director or holder of the Company's Common
Stock is a party to any voting agreement or voting trust other than the Voting
Agreement.
(d) Outstanding Security Holders. Exhibit C attached hereto contains
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a listing of all holders of the outstanding Common Stock and Series A Stock
immediately prior to the Closing.
(e) Valid Issuance. The outstanding Series A Preferred Stock and
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Common Stock referred to in Section 3.4(a) and (b) are duly and validly issued,
fully paid and nonassessable.
3.5 Subsidiaries. Exhibit E attached hereto contains a listing of
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all of the Company's subsidiaries. The Company beneficially owns or has the
right to acquire all of the outstanding capital stock of each of its
subsidiaries.
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3.6 Governmental Consents. No consent, approval, qualification,
---------------------
order or authorization of, or filing with, any local, state, or federal
governmental authority is required on the part of the Company in connection with
the Company's valid execution, delivery, or performance of this Agreement, the
offer, sale or issuance of the Series B Stock by the Company or the issuance of
Common Stock upon conversion of the Series B Preferred Stock, except (i) the
filing of the Restated Certificate with the Secretary of State of the State of
Delaware, and (ii) such filings as have been or will be made prior to the
Closing, except that any notices of sale required to be filed with the
Securities and Exchange Commission under Regulation D of the Securities Act, or
such post-closing filings as may be required under applicable state securities
laws, which will be timely filed within the applicable periods therefor.
3.7 Contracts and Other Commitments. Neither the Company nor any of
-------------------------------
its Significant Subsidiaries has any material contract, agreement, lease,
commitment or proposed transaction, written or oral, absolute or contingent,
other than (i) contracts for the purchase of supplies and services that do not
involve more than $100,000, and do not extend for more than one (1) year beyond
the date hereof, (ii) contracts entered into in the ordinary course of business,
(iii) contracts terminable at will by the Company on no more than thirty (30)
days, notice without cost or liability to the Company which are not material to
the conduct of the Company's business, (iv) contracts described in the Placement
Memorandum (as defined in Section 3.13 and leases of offices and facilities
identified therein), and (v) employment or consulting agreements with persons
who are not directors or executive officers of the Company. Neither the Company
nor any of its Significant Subsidiaries has a collective bargaining agreement
with any of its United States employees.
3.8 Litigation. There is no action, suit, proceeding, claim,
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arbitration or investigation ("ACTION") pending (or, to the best of the
Company's knowledge, currently threatened) against the Company or any of its
subsidiaries, or their activities, properties or assets or, to the best of the
Company's knowledge, against any officer or director of the Company or its
subsidiaries in connection with such officer's, director's or employee's
relationship with, or actions taken on behalf of, the Company or any of its
subsidiaries or questioning the validity of this Agreement or any action taken
or to be taken in connection herewith that could reasonably be expected to have
a Material Adverse Effect. The Company is not a party to or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or
government agency or instrumentality and there is no Action by the Company
currently pending or which the Company has threatened, and intends, to initiate.
3.9 Invention Assignment and Confidentiality Agreement. Each
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employee and contractor of the Company, BIS Strategic Decisions, Inc. ("BIS")
and ExperNet, Inc. ("ExperNet") who is engaged in information technology
research and analysis, or software development, has entered into and executed an
agreement
6
containing confidentiality obligations in the form attached to this Agreement as
Exhibit F or an agreement containing substantially similar terms, or terms no
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less favorable to the Company.
3.10 Proprietary Assets. The Company and its Significant Subsidiaries
------------------
have full title and ownership of, or are duly licensed under or otherwise
authorized to use, all patents, patent applications, trademarks, service marks,
trade names, copyrights, trade secrets, confidential and proprietary
information, designs and proprietary rights necessary to enable them to carry on
their business as now conducted (the "PROPRIETARY ASSETS") and have or expect in
good faith to be able to obtain or create the Proprietary Assets necessary to
carry on their business as proposed to be conducted, without, to the best of
their knowledge, any conflict with or infringement of the rights of others,
where the same would have a Material Adverse Effect. Neither the Company nor,
to its knowledge, any of its subsidiaries, has granted any options, licenses or
agreements of any kind giving any third party any exclusive rights to any
material Proprietary Assets of the Company. The Company has not received any
communications alleging that the Company has violated or, by conducting its
business as now conducted and as proposed to be conducted, would violate any of
the patents, trademarks, service marks, trade names, copyrights or trade secrets
or other proprietary rights of any other person or entity.
3.11 Compliance with Law and Charter Documents. Neither the Company
-----------------------------------------
nor any of its Significant Subsidiaries is in violation or default of any
provisions of their Certificate or Articles of Incorporation or Bylaws, both as
amended (or foreign equivalents thereof), and to the best of the Company's
knowledge, except for any violations that would have no Material Adverse Effect,
the Company and its Significant Subsidiaries are in compliance with all material
indentures, instruments or agreements by which it is bound, all applicable
statutes, laws, regulations and executive orders of the United States of America
and all states, foreign countries or other governmental bodies and agencies
having jurisdiction over their business or properties.
3.12 Registration Rights. Except as provided in the Registration
-------------------
Rights Agreement, the Company has not granted or agreed to grant to any person
or entity any rights (including piggyback registration rights) to have any
securities of the Company registered with the United States Securities and
Exchange Commission ("SEC") or any other governmental authority.
3.13 Financial Statements. The statements of operations and balance
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sheets of BIS as of December 31, 1994 and June 30, 1995 and for the twelve (12)
and six (6) month periods then ended (the "Financial Statements"), of BIS,
included in the Private Placement Memorandum dated September 15, 1995 and
previously delivered to the Investors (the "Placement Memorandum") are in
accordance with the books and records of BIS and fairly set forth the
consolidated operating results and financial
7
condition of BIS for the twelve-month and six-month periods then ended and as of
December 31, 1994 and June 30, 1995, respectively, on the basis described in the
Placement Memorandum. The Financial Statements as of, and for the twelve months
ended, December 31, 1994 have been prepared in accordance with generally
accepted accounting principles ("GAAP"). The statement of operations data
(shown on a pro forma basis) and balance sheet data (shown on an actual basis)
of the Company, BIS and ExperNet as of June 30, 1995 and for the six-month
period then ended, included in the Placement Memorandum, are in accordance with
the books and records of the Company, BIS and ExperNet. Except as set forth or
reserved for in the Financial Statements or as disclosed in the Placement
Memorandum, the Company has no material liabilities, other than (i) liabilities
incurred in the ordinary course of business subsequent to June 30, 1995, (ii)
liabilities not in excess of $100,000 in the aggregate, and (iii) liabilities
incurred in the ordinary course of business and not required under generally
accepted accounting principles to be reflected in the Financial Statements.
3.14 Disclosure. This Agreement and the statements made in the
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Placement Memorandum, taken as a whole, do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
herein or therein, under the circumstances under which they were made, not
misleading when taken as a whole; provided, that with respect to the
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projections, forecasts and expressions of opinion included therein and the
statements set forth therein under the caption "Investment Considerations," the
Company represents only that such projections, forecasts, expressions of opinion
and statements were made in good faith and that the Company believes there is a
reasonable basis therefor.
3.15 Certain Actions. Since June 30, 1995, (i) the Company has not
---------------
declared or paid any dividends, or authorized or made any distribution upon or
with respect to any class or series of its capital stock and (ii) except as
disclosed in the Placement Memorandum, neither the Company nor any Significant
Subsidiary has (A) sold, exchanged or otherwise disposed of any material assets
or rights other than in the ordinary course of business, or (B) entered into any
material transactions with any of its officers, directors or employees or any
entity controlled by any of such individuals.
3.16 Activities Since Balance Sheet Date. To the best of the
-----------------------------------
Company's knowledge, since June 30, 1995, there has not been any event or
condition of any type that has had or would reasonably be expected to have a
Material Adverse Effect.
3.17 Employee Benefit Plans. None of the Company, BIS or ExperNet has
----------------------
any outstanding liabilities or accrued and unpaid funding obligations with
respect to any Employee Benefit Plan (as defined in Section 3 of the Employee
Retirement Income Security Act of 1974).
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3.18 Tax Returns. Payments and Elections. The Company and each
-----------------------------------
Significant Subsidiary has filed all United States federal and, to its
knowledge, state tax returns and reports as required by law, and, to its
knowledge, these returns and reports are true and correct in all material
respects, except in each case where the same would not have a Material Adverse
Effect or where adequate reserves therefor have been reflected in the Financial
Statements. The Company and its Significant Subsidiaries have not been
notified, nor do they otherwise have knowledge that, they are currently the
subject of any ongoing audit by federal or state tax authorization. The Company
has paid all taxes and other assessments shown on such returns as due, except
those contested by it in good faith.
3.19 Related Party Transactions. Except as described in the
--------------------------
Placement Memorandum, (i) no executive officer or director of the Company or
member of his or her immediate family is indebted to the Company, nor is the
Company indebted (or committed to make loans or extend or guarantee credit) to
any of them; and (ii) to the best of the Company's knowledge, none of such
persons has any direct or indirect ownership interest in any firm or corporation
with which the Company is affiliated or with which the Company has a material
business relationship, or any firm or corporation that competes with the
Company, except through ownership of stock in publicly traded companies.
4. REPRESENTATIONS WARRANTIES AND CERTAIN AGREEMENTS OF INVESTORS. Each
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Investor hereby represents and warrants to, and agrees with, the Company,
severally and not jointly, that:
4.1 Authorization. This Agreement, the Voting Agreement and the
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Registration Rights Agreement constitute such Investor's valid and legally
binding obligations, enforceable in accordance with their respective terms
except as may be limited by (i) applicable bankruptcy, insolvency,
reorganization or other laws of general application relating to or affecting the
enforcement of creditors' rights generally and (ii) the effect of rules of law
governing the availability of equitable remedies. Each Investor represents that
such Investor has full power and authority to enter into this Agreement, the
Registration Rights Agreement and the Voting Agreement.
4.2 Purchase for Own Account. This Agreement is made with each
------------------------
Investor in reliance upon such Investor's representation to the Company, which
by such Investor's execution of this Agreement such Investor hereby confirms,
that the Series B Stock to be purchased by such Investor and the Conversion
Shares issuable upon conversion thereof are being acquired for investment for
such Investor's own account, not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof, and that such Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, each Investor further
represents that such Investor does not have any
9
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Series B Stock and/or the Conversion Shares.
4.3 Disclosure of Information. Such Investor has received or has had
-------------------------
full access to all the information it considers necessary or appropriate to make
an informed investment decision with respect to the Purchased Shares to be
purchased by such Investor under this Agreement. Such Investor further has had
an opportunity to ask questions and receive answers from the Company regarding
the terms and conditions of the offering of the Purchased Shares and to obtain
additional information (to the extent the Company possessed such information or
could acquire it without unreasonable effort or expense) necessary to verify any
information furnished to such Investor or to which such Investor had access.
The foregoing, however, does not in any way limit or modify the representations
and warranties made by the Company in Section 3.
4.4 Investment Experience. Such Investor understands and
---------------------
acknowledges that the purchase of the Purchased Shares involves substantial
risk. Such Investor: (i) has experience as an investor in securities of
companies in the development stage and acknowledges that such Investor is able
to fend for itself, can bear the economic risk of such Investor's investment in
the Purchased Shares and has such knowledge and experience in financial or
business matters that such Investor is capable of evaluating the merits and
risks of this investment in the Purchased Shares and protecting its own
interests in connection with this investment and/or (ii) has a preexisting
personal or business relationship with the Company and certain of its officers,
directors or controlling persons of a nature and duration that enables such
Investor to be aware of the character, business acumen and financial
circumstances of such persons.
4.5 Accredited Investor Status. Unless otherwise expressly indicated
--------------------------
on Exhibit A to this Agreement, such Investor is an "accredited investor" within
the meaning of Regulation D promulgated under the Securities Act.
4.6 Restricted Securities. Each Investor understands that the
---------------------
Purchased Shares and the Conversion Shares are characterized as "restricted
securities" under the Securities Act inasmuch as they are being acquired from
the Company in a transaction not involving a public offering and that under the
Securities Act and applicable regulations thereunder such securities may be
resold without registration under the Securities Act only in certain limited
circumstances. In this connection, such Investor represents that such Investor
is familiar with Rule 144 of the U.S. Securities and Exchange Commission, as
presently in effect, and understands the resale limitations imposed thereby and
by the Securities Act. Such Investor understands that the Company is under no
obligation to register any of the securities sold hereunder (or any securities
issuable upon conversion thereof) except
10
as provided in the Registration Rights Agreement. Such Investor understands
that no public market now exists for any of the Purchased Shares or the
Conversion Shares and that it is uncertain whether a public market will ever
exist for the Purchased Shares or the Conversion Shares.
4.7 Further Limitations on Disposition. Without in any way limiting
-----------------------------------
the representations set forth above, such Investor further agrees not to make
any disposition of all or any portion of the Purchased Shares or the Conversion
Shares unless and until:
(a) there is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(b) (i) such Investor shall have notified the Company of the proposed
disposition and shall have furnished the Company with a statement of the
circumstances surrounding the proposed disposition, and (ii) such Investor shall
have furnished the Company, at the expense of such Investor or its transferee,
with an opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such securities under the 1933 Act.
Notwithstanding the provisions of paragraphs (a) and (b) above, no such
registration statement or opinion of counsel shall be required: (i) for any
transfer of any Purchased Shares or Conversion Shares in compliance with SEC
Rule 144 or Rule 144A, or (ii) for any transfer of Purchased Shares or
Conversion Shares by an Investor that is a partnership or a corporation to (A) a
partner of such partnership or shareholder of such corporation, (B) a retired
partner of such partnership who retires after the date hereof, (C) the estate of
any such partner or shareholder, or (iii) for the transfer by gift, will or
interstate succession by any Investor to his or her spouse or lineal descendants
or ancestors or any trust for any of the foregoing; provided that in each of the
--------
foregoing cases the transferee agrees in writing to be subject to the terms of
this Section 4 (other than Section 4.5) to the same extent as if the transferee
were an original Investor hereunder.
4.8 Legends. It is understood that the certificates evidencing the
-------
Purchased Shares and the Conversion Shares will bear the legends set forth
below:
(a) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS
OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM.
11
INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS
OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE
SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS
IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
(b) Any legend required by the laws of the State of Delaware or any
other state securities laws, including a legend substantially in the form of the
following:
THE SHARES EVIDENCED BY THIS CERTIFICATE: (1) ARE CONVERTIBLE INTO
SHARES OF COMMON STOCK OF THE COMPANY AT THE OPTION OF THE HOLDER AT ANY TIME
PRIOR TO AUTOMATIC CONVERSION THEREOF, AND (2) AUTOMATICALLY CONVERT INTO COMMON
STOCK OF THE COMPANY IN THE EVENT OF A PUBLIC OFFERING MEETING CERTAIN
REQUIREMENTS OR UPON CERTAIN CONSENTS OF THE HOLDERS OF THE COMPANY'S PREFERRED
STOCK; ALL PURSUANT TO AND UPON THE TERMS AND CONDITIONS SPECIFIED IN THE
COMPANY'S CERTIFICATE OF INCORPORATION. A COPY OF SUCH CERTIFICATE OF
INCORPORATION MAY BE OBTAINED, WITHOUT CHARGE, AT THE COMPANY'S PRINCIPAL
OFFICE.
The legend set forth in (a) above shall be removed by the Company from any
certificate evidencing Purchased Shares or Conversion Shares upon delivery to
the Company of an opinion by counsel, reasonably satisfactory to the Company,
that a registration statement under the 1933 Act is at that time in effect with
respect to the legended security or that such security can be freely transferred
in a public sale without such a registration statement being in effect and that
such transfer will not jeopardize the exemption or exemptions from registration
pursuant to which the Company issued the Purchased Shares or Conversion Shares.
4.9 Waiver of Conflicts. Each Investor acknowledges that ▇▇▇▇▇▇▇▇ &
-------------------
▇▇▇▇▇▇▇▇ has represented other Investors in connection with transactions other
than this Agreement and may represent others having interests adverse to the
Investors in connection with matters unrelated to this Agreement. Each Investor
hereby waives any conflict or alleged conflict arising as a result of such
representation.
5. CONDITIONS TO INVESTORS' OBLIGATIONS AT CLOSING. The obligations of
-----------------------------------------------
each Investor under Section 2 of this Agreement are subject to the fulfillment
or waiver, on or before the Closing, of each of the following conditions, the
waiver of which shall not be effective against any Investor who does not consent
to such waiver.
12
5.1 Representations and Warranties True. Each of the representations
-----------------------------------
and warranties of the Company contained in Section 3 shall be true and correct
on and as of the Closing with the same effect as though such representations and
warranties had been made on and as of the date of the Closing.
5.2 Performance. The Company shall have performed and complied with
-----------
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing and
shall have obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
5.3 Restated Articles Effective. The Restated Certificate shall have
---------------------------
been duly adopted by the Company by all necessary corporate action of its Board
of Directors and stockholders, and shall have been duly filed with and accepted
by the Secretary of State of the State of Delaware.
5.4 Compliance Certificate. The Company shall have delivered to each
----------------------
Investor at the Closing a certificate signed on its behalf by its President,
Chief Executive Officer, or Vice President-Finance certifying, on behalf of the
Company, that the conditions specified in Sections 5.1, 5.2 and 5.3 have been
fulfilled and stating that there shall have been no material adverse change in
the business, affairs, prospects, operations, properties, assets or condition of
the Company not previously disclosed to the Investors in writing.
5.5 Securities Exemptions. The offer and sale of the Purchased
---------------------
Shares to the Investors pursuant to this Agreement shall be exempt from the
registration requirements of the Securities Act and the registration and/or
qualification requirements of all applicable state securities laws.
5.6 Proceedings and Documents. All corporate and other proceedings
-------------------------
in connection with the transactions contemplated at the Closing and all
documents incident thereto shall be reasonably satisfactory in form and
substance to the Investor's special counsel, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, which shall
have received all such counterpart originals and certified or other copies of
such documents as it may reasonably request.
5.7 No Material Change. There shall have been no material adverse
------------------
change in the business, affairs, prospects, operations, properties, assets or
condition of the Company.
5.8 Registration Rights Agreement: Voting Agreement: Co-Sale
--------------------------------------------------------
Agreement. The Company and each Investor shall have executed and delivered the
---------
Registration Rights Agreement in the form attached to this Agreement as Exhibit
-------
G (the "REGISTRATION RIGHTS AGREEMENT"); the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and each
-
13
Investor shall have executed and delivered the Amended and Restated Investor
Rights and Voting Agreement in the form attached as Exhibit H (the "VOTING
---------
AGREEMENT"); and the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and each Investor shall have
executed and delivered the Co-Sale and Stock Restriction Agreement in the form
attached as Exhibit I (the "CO-SALE AGREEMENT").
---------
5.9 Opinion of Counsel. The Investors shall have received the
------------------
opinion of ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇, dated the date of the Closing, as to the
matters set forth in Exhibit J.
---------
5.10 Directors. The Company's Bylaws shall provide for at least six
---------
Directors and the Company's Board of Directors shall have resolved to appoint
▇▇▇▇▇ ▇▇▇▇▇▇ to the position of Director effective as of the Closing.
5.11 Minimum Shares Purchased. A minimum of 2,285,696 shares of
------------------------
Series B Stock shall be purchased by the Investors at the Closing under this
Agreement for a minimum aggregate purchase price of $8,000,000 and, effective as
of the Closing, the Convertible Note shall be converted into an aggregate of
571,428 shares of Series B Stock.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations of
--------------------------------------------------
the Company to each Investor under this Agreement are subject to the fulfillment
or waiver on or before the Closing of each of the following conditions by such
Investor:
6.1 Representations and Warranties. The representations and
------------------------------
warranties of such Investor contained in Section 4 shall be true and correct on
the date of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
6.2 Payment of Purchase Price. Each Investor shall have delivered to
-------------------------
the Company the purchase price specified for such Investor on Exhibit A in
---------
accordance with the provisions of Section 2.
6.3 Restated Certificate Effective. The Restated Certificate shall
------------------------------
have been accepted by the Secretary of State of the State of Delaware.
6.4 Securities Exemptions. The offer and sale of the Purchased
---------------------
Shares to the Investors pursuant to this Agreement shall be exempt from the
registration requirements of the Securities Act and the registration and/or
qualification requirements of all applicable state securities laws.
6.5 Registration Rights Agreement. Each Investor shall have
-----------------------------
14
executed and delivered the Registration Rights Agreement and the Voting
Agreement.
6.6 Minimum Shares Purchased. A minimum of 2,285,696 shares of
------------------------
Series B Stock shall be purchased by the Investors at the Closing under this
Agreement for a minimum aggregate purchase price of $8,000,000.00 and, effective
as of the Closing, the Convertible Note shall be converted into an aggregate of
571,428 shares of Series B Stock.
7. COVENANTS OF THE COMPANY.
------------------------
7.1 Delivery of Financial Statements.
--------------------------------
(a) The Company shall furnish to each Investor as soon as
practicable, but in any event within ninety (90) days after the end of each
fiscal year of the Company (one hundred and twenty days in the case of the
fiscal year ending December 31, 1995), an income statement for such fiscal year,
a balance sheet of the Company and statement of stockholders' equity as of the
end of such year, and a schedule as to the sources and applications of funds for
such year, such year-end financial reports to be in reasonable detail, prepared
in accordance with GAAP, and audited by a nationally recognized firm of
independent public accountants selected by the Company and approved by its Board
of Directors.
(b) The Company shall deliver to each Investor as soon as
practicable, but in any event within sixty (60) days after the end of each of
the first three (3) quarters of each fiscal year of the Company, an unaudited
income statement, schedule as to the sources and application of funds for such
fiscal quarter and an unaudited balance sheet as of the end of such fiscal
quarter.
(c) The Company shall furnish to each Investor who (together with
Investors which control it, are controlled by it, or are under common control
with it) holds at least 800,000 shares of Series B Preferred Stock or Common
Stock issued upon conversion thereof (each a "Major Investor") as soon as
practicable, but in any event within thirty (30) days after the end of each
month, an unaudited income statement and balance sheet as of the end of such
month, in reasonable detail.
(d) The Company shall furnish to each Major Investor as soon as
practicable, but in any event thirty (30) days after the end of each fiscal year
(sixty (60) days in the case of the fiscal year ended December 31, 1995), a
budget and business plan for the next fiscal year; provided, however, that the
Company's obligation to furnish a business plan may be waived by the Board of
Directors (either by express waiver or by the failure of the Board of Directors
to request preparation of a business plan).
15
(e) Notwithstanding any provisions contained in this Section 7.1 to
the contrary, the Company shall not be obligated under this Section 7.1 to
provide information which it deems in good faith to be a trade secret or similar
confidential information.
7.2 Inspection. The Company shall permit each Major Investor, at
----------
such Major Investor's expense, to visit and inspect the Company's properties, to
examine its books of account and records and to discuss the Company's affairs,
finances and accounts with its officers, and shall provide such other
information as may reasonably be requested by such, all at such reasonable times
as may be requested by the Major Investor; provided, however, that the Company
-------- -------
shall not be obligated pursuant to this Section 8.2 to provide access to any
information which it reasonably considers to be a trade secret or similar
confidential information except to Major Investors who execute a confidentiality
agreement in such form as the Company may reasonably request.
8. MISCELLANEOUS.
-------------
8.1 Survival of Warranties and Covenants. The representations,
------------------------------------
warranties and covenants of the Company and the Investors contained in or made
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the Closing and shall in no way be affected by any investigation
of the subject matter thereof made by or on behalf of any of the Investors,
their counsel or the Company, as the case may be. The Company's obligations
under Section 7.1 and 7.2 shall terminate (a) immediately prior to the closing
of an underwritten public offering pursuant to a registration statement (other
than a registration statement relating either to the sale of securities to
employees of the Company pursuant to a stock option, stock purchase or similar
plan or a transaction pursuant to Rule 145 under the Securities Act of 1933, as
amended (the "Act")) under the Act covering the Company's Common Stock, which
results in aggregate cash proceeds (prior to underwriters' commissions and
expenses) to the Company and any selling stockholder of at least $15,000,000,
and which has a public offering price of not less than $5.25 per share (as
appropriately adjusted for stock splits, combinations, reclassifications and the
like), or (b)upon an acquisition of the Company by another corporation or entity
by consolidation, merger or other reorganization in which the holders of the
Company's outstanding voting stock immediately prior to such transaction own,
immediately after such transaction, securities representing less than fifty
percent (50%) or more of the voting power of the corporation or other entity
surviving such transaction.
8.2 Successors and Assigns. The terms and conditions of this
----------------------
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
16
8.3 Governing Law. This Agreement shall be governed by and construed
-------------
under the internal laws of the State of New York as applied to agreements among
New York residents entered into and to he performed entirely within New York,
without reference to principles of conflict of laws or choice of laws.
8.4 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.5 Headings. The headings and captions used in this Agreement are
--------
used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
8.6 Notices. Unless otherwise provided, any notice required or
-------
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on Exhibit A or, in the case of the Company, at
---------
Giga Information Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President - Finance
with a copy to:
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, Phieger & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or at such other address as any party or the Company may designate by giving ten
(10) days advance written notice to all other parties.
8.7 Expenses. Irrespective of whether the Closing is effected, the
--------
Company shall pay all costs and expenses that it incurs with respect to the
negotiation, execution, delivery and performance of this Agreement. If the
Closing is effected, the Company shall, at the Closing, reimburse the reasonable
fees of special counsel for all of the Investors not to exceed $18,000.
17
8.8 No Finder's Fees. Each party represents that it neither is nor
----------------
will be obligated for any finder's or broker's fee or commission in connection
with this transaction, except as disclosed in the Placement Memorandum. Each
Investor agrees to indemnity and to hold harmless the Company from any liability
for any commission or compensation in the nature of a finders' or broker's fee
(and any asserted liability) for which the Investor or any of its officers,
partners, employees, or representatives is responsible. The Company agrees to
indemnity and hold harmless each Investor from any liability for any omission or
compensation in the nature of a finder's or broker's fee (and any asserted
liability) for which the Company or any of its officers, employees or
representatives is responsible.
8.9 Amendments and Waivers. Except as specified in Section 2.2, any
----------------------
term of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the holders of Purchased Shares and/or Conversion Shares representing at
least a majority of the aggregate number of shares of Common Stock into which
the Purchased Shares then are convertible and/or have been converted (excluding
any of such shares that have been sold to the public or pursuant to SEC Rule
144). Any amendment or waiver effected in accordance with this Section shall be
binding upon each holder of any Purchased Shares and/or Conversion Shares at the
time outstanding, each future holder of such securities, and the Company;
provided, however, that no condition set forth in Section 5 may be waived with
--------- -------
respect to any Investor who does not consent thereto; and provided further, that
-------- -------
New Investors may become parties to this Agreement in accordance with Section
2.2 without any amendment of this Agreement or any consent or approval of any
Investor.
8.10 Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
8.11 Entire Agreement. This Agreement, together with all exhibits and
----------------
schedules hereto, constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings duties or
obligations between the parties with respect to the subject matter hereof.
8.12 Further Assurances. From and after the date of this Agreement,
------------------
upon the request of any Investor or the Company, the Company and the Investors
shall execute and deliver such instruments, documents or other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
18
SIGNATURE PAGE TO THE
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY:
-----------
GIGA INFORMATION GROUP, INC.
(A DELAWARE CORPORATION)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Title:
----------------
19
SIGNATURE PAGE TO THE
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
THE INVESTORS:
-------------
Name of Investor:
21st Century Communications Partners, L.P.
By: Infomedia Associates, Ltd., a General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
21st Century Communications Partners, L.P.
By: Infomedia Associates, Ltd., a General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
21st Century Communications Partners, L.P.
By: Infomedia Associates, Ltd., a General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
Montsol Investments NV
By: S/2/ Technology Corp.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: President S/2/ Technology Corp.
--------------------------------
Executive Technology L.P.
By: S/2/ Technology Corp. its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: President S/2/ Technology Corp.
--------------------------------
which is the GP of Executive Technology
---------------------------------------
Core Technology Fund Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Managing Director
--------------------------------
Sci Tech Investment Partners L.P.
By: S/2/ Technology Corp., its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: President, S/2/ Technology Corp.
---------------------------------
which is the GP of Sci-Tech Investment
--------------------------------------
Partner
--------------------------------------
The Matrix Technology Group NV
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Managing Director
---------------------------------
Yale University
By: S/2/ Technology Corp.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: President, S/2/ Technology Corp.
---------------------------------
Yale University Retirement Plan for Staff Employees
By: S/2/ Technology Corp.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: President, S/2/ Technology Corp.
---------------------------------
20
SG Partners L.P.
By: S/2/ Technology Corp., its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: President, S/2/ Technology Corp.
---------------------------------
which is the GP of SG Partners
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇
--------------------------
(▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇)
Haussmann Holdings
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Principal
---------------------------------
▇▇▇▇▇▇▇▇▇▇ Growth Partners, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Principal
--------------------------------
Its General Partner, ▇▇▇▇▇▇▇▇▇▇ Asset Management, ▇.▇.
▇▇▇▇▇▇▇▇▇▇ Growth Partners, II, L.P.
By: /s/ ▇▇▇▇▇ High
-----------------------------------
Title: ▇▇▇▇▇ High
--------------------------------
Its General Partner
Nosrob Investments, Ltd.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Principal
--------------------------------
Quota Fund, N.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Principal
---------------------------------
▇▇▇▇▇▇▇▇▇▇ Small Cap Partners III, L.P.
By: /s/ ▇▇▇▇▇ High
------------------------------------
Title: ▇▇▇▇▇ High
---------------------------------
Its General Partner
21
Lagunitas Partners, L.P.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ & McBaine International
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇. ▇▇▇▇▇▇▇▇▇ McBaine
/s/ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
(▇. ▇▇▇▇▇▇▇▇▇ McBaine)
Kensington Partners L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇ , its General Partner
-----------------------------
By: ▇▇▇▇ ▇▇▇▇
Title:
---------------------------------
Acorn Investment Trust
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Chief Executive Officer
---------------------------------
22
EXHIBIT A
---------
SCHEDULE OF INVESTORS
Shares Cash Date
Investor Name Purchased Tendered Rec'd
------------- --------- --------- -------
CLOSING OF NOVEMBER 9, 1995
1. Geo Capital
21st Century Communications Partners, L.P. 968,615 $ 3,390,150.00 11/14
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
21st Century Communications Foreign Partners, L.P. 130,397 $ 456,390.00 11/14
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
21st Century Communications T-E Partners, L.P. 329,560 $ 1,153,460.00 11/14
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
2. S. Squared
Montsol Investments N.V. 26,460 $ 92,610.00 11/13
c/o S/2/ Technology Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Technology L.P. 66,080 $ 231,280.00 11/13
c/o S/2/ Technology Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Core Technology Fund Inc. 184,339 $ 645,186.50 11/13
c/o S/2/ Technology Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
A-1
Shares Cash Date
Investor Name Purchased Tendered Rec'd
------------- --------- --------- -------
Sci-Tech Investment Partners L.P. 98,058 $ 343,203.00 11/13
c/o S/2/ Technology Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
The Matrix Technology Group N.V. 39,746 $ 139,111.00 11/13
c/o S/2/ Technology Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Yale University 332,581 $ 1,164,033.50 11/13
c/o S/2/ Technology Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Yale University Retirement Plan for Staff Employees 25,752 $ 90,132.00 11/14
c/o S/2/ Technology Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
SG Partners L.P. 84,127 $ 294,444.50 11/13
c/o S/2/ Technology Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
3. ▇▇▇▇▇▇
Acorn Fund 600,000 $ 2,100,000.00 11/08
c/▇ ▇▇▇▇▇▇ Asset Management
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
4. ▇▇▇▇▇▇▇▇▇▇
A-2
Shares Cash Date
Investor Name Purchased Tendered Rec'd
------------- --------- --------- -------
▇▇▇▇▇▇▇▇▇▇ Small Cap Partners III, L.P. 40,000 -$140,000.00 ▇▇/▇▇
▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇) Limited
One Capital Place
P.O. Box 1062
▇▇▇▇▇▇ Town, Grand Cayman, Cayman Islands
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Asset Management 224,000 $ 784,000.00 11/08
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Haussmann Holdings 288,000 $ 1,008,000.00 ▇▇/▇▇
▇/▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Management
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Growth Partners, L.P. 400,000 $ 140,000.00 11/08
c/▇ ▇▇▇▇▇▇▇▇▇▇ Asset Management
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Growth Partners II, L.P. 96,000 $ 336,000.00 ▇▇/▇▇
▇/▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇▇▇) Limited
One Capital Place
▇▇▇▇▇▇ Town, Grand Cayman, Cayman Islands
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Nosrob Investments Ltd. 48,000 $ 168,000.00 11/08
c/▇ ▇▇▇▇▇▇▇▇▇▇ Asset Management
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇ 2,857 $ 9,999.50 ▇▇/▇▇
▇/▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Management
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5. Kensington Partners
A-3
Shares Cash Date
Investor Name Purchased Tendered Rec'd
------------- --------- --------- -------
Kensington Partners, L.P. 88,000 -$308,000.00 11/13
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
6. ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Lagunitas Partners, L.P. 221,400 $ 774,900.00 11/09
c/o Gruber and McBaine Capital Management
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ & McBaine International 35,680 $ 124,880.00 11/09
c/o Gruber and ▇▇▇▇▇▇▇ Capital Management
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ 28,560 $ 99,960.00 11/09
c/o Gruber and McBaine Capital Management
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇ McBaine 28,560 $ 99,960.00 11/09
c/o Gruber and ▇▇▇▇▇▇▇ Capital Management --------------
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Total: $14,093,700.00
==============
A-4
AMENDMENT NO. 1 TO SERIES B PREFERRED STOCK
PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 dated as of December 5, 1995 to the Series B Preferred
Stock Purchase Agreement, dated November 13, 1995 (the "Purchase Agreement") by
and among Giga Information Group, Inc. (the "Company"), and the purchasers
listed on Exhibit A thereto (the "Purchasers").
WHEREAS, Section 2.2(a) of the Purchase Agreement, as executed on November
13, 1995, provides that:
Conditions of Additional Closing. At any time or times within thirty (30)
--------------------------------
days immediately following the Closing, the Company may, at one or more closings
(each an "ADDITIONAL CLOSING"), without obtaining the signature, consent or
permission of any of the Investors, offer and sell to other investors ("NEW
INVESTORS"), at a price of not less than $3.50 per share, up to that number of
shares of Series B Stock that is equal to 5,142,856 shares of Series B Stock
less the number of shares of Series B Stock actually issued and sold by the
Company prior to such Additional Closing pursuant to this Agreement and upon
conversion of the Convertible Note (as defined in Section 3.4(c)). New
Investors may include persons or entities who are already Investors under this
Agreement.
WHEREAS, the Company has requested an extension of the period in which it
may hold an Additional Closing to enable it to offer and sell shares of its
Series B Preferred Stock ("Series B Stock") to certain persons who are currently
stockholders, directors, or officers of, or advisors to, or who have other
business relationships with, the Company;
WHEREAS, the parties hereto wish to amend the Series B Purchase Agreement
pursuant to Section 8.9 thereof, to provide for such an extension, as
hereinafter provided;
NOW THEREFORE, in consideration of the foregoing, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. The Company and each of the Purchasers signing below hereby agree that
Section 2.2(a) of the Purchase Agreement is hereby amended to read in its
entirety as follows:
Conditions of Additional Closing. At any time or times on or before January
--------------------------------
20, 1996, the Company may, at one or more closings (each an "ADDITIONAL
CLOSING"), without obtaining the signature, consent or permission
A-5
of any of the Investors, offer and sell to other investors ("NEW INVESTORS"), at
a price of not less than $3.50 per share, up to that number of shares of Series
B Stock that is equal to 5,142,856 shares of Series B Stock less the number of
shares of Series B Stock actually issued and sold by the Company prior to such
Additional Closing pursuant to this Agreement and upon conversion of the
Convertible Note (as defined in Section 3.4(c)); provided that each New Investor
shall have been, as of November 13, 1995: (i) an employee of, or advisor to,
the Company, (ii) an individual specified in Exhibit I to Amendment No. 1 to the
---------
Purchase Agreement, or (iii) an affiliate of any of the foregoing. New
Investors may include persons or entities who are already Investors under this
Agreement.
Wherever the Purchase Agreement is itself referred to in the Purchase
Agreement, it shall mean the Purchase Agreement as amended by this Amendment No.
1.
2. The Company and the New Investors purchasing Series B Stock at any
Additional Closing will execute counterpart signature pages to this Agreement,
the Registration Rights Agreement, the Voting Agreement and the Co-Sale
Agreement (each as defined in the Purchase Agreement), and such New Investors
will, upon delivery to the Company of such signature pages, become parties to,
and bound by, this Agreement, the Registration Rights Agreement, the Voting
Agreement and the Co-Sale Agreement, each to the same extent as if they had been
Investors at the Closing. Immediately after any Additional Closing, Exhibit A to
---------
the Purchase Agreement will be amended by the Company to list the New Investors
purchasing shares of Series B Stock hereunder and the number of shares of Series
B Stock purchased by each New Investor under the Purchase Agreement at the
Additional Closing.
3. Upon the completion of an Additional Closing as provided in the
Purchase Agreement as amended hereby, each New Investor will be deemed to be an
"INVESTOR" for all purposes of the Purchase Agreement, the Registration Rights
Agreement and the Co-Sale Agreement, and a "SERIES B PURCHASER" for purposes of
the Voting Agreement.
4. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same instrument.
A-6
IN WITNESS WHEREOF, the undersigned (or sufficient of them) have executed
this Amendment No. 1 to the Series B Preferred Stock Purchase Agreement as of
the date first written above.
THE COMPANY:
-----------
GIGA INFORMATION GROUP, INC.
(a Delaware corporation)
By:/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Title:
---------------------------
A-7
SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
THE INVESTORS:
-------------
Name of Investor:
21st Century Communications Partners, L.P.
By: Infomedia Associates, Ltd., a General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
21st Century Communications Partners, L.P.
By: Infomedia Associates, Ltd., a General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
21st Century Communications Partners, L.P.
By: Infomedia Associates, Ltd., a General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
A-8
Montsol Investments NV
By: S/2/ Technology Corp.
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: President S/2/ Technology Corp.
--------------------------------
Executive Technology L.P.
By: S/2/ Technology Corp. its General Partner
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: President S/2/ Technology Corp.
--------------------------------
which is the GP of Executive Technology
---------------------------------------
Core Technology Fund Inc.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Title: Managing Director
--------------------------------
A-9
Sci Tech Investment Partners L.P.
By: S/2/ Technology Corp., its General Partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: President, S/2/ Technology Corp.
---------------------------------
which is the GP of Sci-Tech Investment
---------------------------------------
Partner
-------
The Matrix Technology Group NV
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Managing Director
---------------------------------
Yale University
By: S/2/ Technology Corp.
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: President, S/2/ Technology Corp.
---------------------------------
Yale University Retirement Plan for Staff Employees
By: S/2/ Technology Corp.
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: President, S/2/ Technology Corp.
---------------------------------
A-10
SG Partners L.P.
By: S/2/ Technology Corp., its General Partner
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: President, S/2/ Technology Corp.
----------------------------------
which is the GP of SG Partners
----------------------------------------
A-11
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇
--------------------------
(▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇)
A-12
Kensington Partners L.P.
By:/s/▇▇▇▇ ▇▇▇▇
------------------------------------
By: ▇▇▇▇ ▇▇▇▇
Title:
---------------------------------
Acorn Investment Trust
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Chief Executive Officer
--------------------------------
A-13
AMENDMENT NO.2 TO SERIES B PREFERRED STOCK
PURCHASE AGREEMENT
THIS AMENDMENT NO. 2 dated as of February 19, 1996 to the Series B
Preferred Stock Purchase Agreement, dated November 13, 1995 (the "Purchase
Agreement") by and among Giga Information Group, Inc. (the "Company"), and the
purchasers listed on Exhibit A thereto (the "Purchasers").
WHEREAS, Section 2.2(a) of the Purchase Agreement, as executed on November
13, 1995, provides that:
Conditions of Additional Closing. At any time or times within thirty (30)
--------------------------------
days immediately following the Closing, the Company may, at one or more closings
(each an "ADDITIONAL CLOSING"), without obtaining the signature, consent or
permission of any of the Investors, offer and sell to other investors ("NEW
INVESTORS"), at a price of not less than $3.50 per share, up to that number of
shares of Series B Stock that is equal to 5,142,856 shares of Series B Stock
less the number of shares of Series B Stock actually issued and sold by the
Company prior to such Additional Closing pursuant to this Agreement and upon
conversion of the Convertible Note (as defined in Section 3.4(c)). New
Investors may include persons or entities who are already Investors under this
Agreement.
WHEREAS, the Company has requested an extension of the period in which it
may hold an Additional Closing to enable it TO OFFER and sell shares of its
Series B Preferred Stock ("Series B Stock") to certain persons who are currently
stockholders, directors, or officers of, or advisors to, or who have other
business relationships with, the Company;
WHEREAS, the parties hereto wish to amend the Series B Purchase Agreement
pursuant to Section 8.9 thereof, to provide for such an extension, as
hereinafter provided;
NOW THEREFORE, in consideration of the foregoing, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. The Company and each of the Purchasers signing below hereby agree that
Section 2.2(a) of the Purchase Agreement is hereby amended to read in its
entirety as follows:
Conditions of Additional Closing. At any time or times on or before
--------------------------------
February 29, 1996, the Company may, at one or more closings (each an "ADDITIONAL
CLOSING"), without obtaining the signature, consent or permission
A-14
of any of the Investors, offer and sell to other investors ("NEW INVESTORS"), at
a price of not less than $3.50 per share, up to that number of shares of Series
B Stock that is equal to 5,400,000 shares of Series B Stock less the number of
shares of Series B Stock actually issued and sold by the Company prior to such
Additional Closing pursuant to this Agreement and upon conversion of the
Convertible Note (as defined in Section 3.4(c)); provided that each New Investor
shall have been, as of November 13, 1995: (i) an employee of, or advisor to,
the Company, (ii) an individual specified in Exhibit I to Amendment No. 2 to the
---------
Purchase Agreement, or (iii) an affiliate of any of the foregoing. New Investors
may include persons or entities who are already Investors under this Agreement.
Wherever the Purchase Agreement is itself referred to in the Purchase
Agreement, it shall mean the Purchase Agreement as amended by this Amendment
No.2.
2. The Company and the New Investors purchasing Series B Stock at any
Additional Closing will execute counterpart signature pages to this Agreement,
the Registration Rights Agreement, the Voting Agreement and the Co-Sale
Agreement (each as defined in the Purchase Agreement), and such New Investors
will, upon delivery to the Company of such signature pages, become parties to,
and bound by, this Agreement, the Registration Rights Agreement, the Voting
Agreement and the Co-Sale Agreement, each to the same extent as if they had been
Investors at the Closing. Immediately after any Additional Closing, Exhibit A to
---------
the Purchase Agreement will be amended by the Company to list the New Investors
purchasing shares of Series B Stock hereunder and the number of shares of Series
B Stock purchased by each New Investor under the Purchase Agreement at the
Additional Closing.
3. Upon the completion of an Additional Closing as provided in the
Purchase Agreement as amended hereby, each New Investor will be deemed to be an
"INVESTOR" for all purposes of the Purchase Agreement, the Registration Rights
Agreement and the Co-Sale Agreement, and a "SERIES B PURCHASER" for purposes of
the Voting Agreement.
4. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same instrument.
A-15
IN WITNESS WHEREOF, the undersigned (or sufficient of them) have executed
this Amendment No. 2 to the Series B Preferred Stock Purchase Agreement as of
the date first written above.
THE COMPANY:
-----------
GIGA INFORMATION GROUP, INC.
(a Delaware corporation)
By: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: President & CEO
-----------------------------
A-16
SIGNATURE PAGE TO AMENDMENT NO.2 TO THE
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
THE INVESTORS:
-------------
Name of Investor:
21st Century Communications Partners, L.P.
By: Infomedia Associates, Ltd., a General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
21st Century Communications Partners, L.P.
By: Infomedia Associates, Ltd., a General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
21st Century Communications Partners, L.P.
By: Infomedia Associates, Ltd., a General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
A-17
Montsol Investments NV
By: S/2/ Technology Corp.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: President S/2/ Technology Corp.
---------------------------------
Executive Technology L.P.
By: S/2/ Technology Corp. its General Partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: President S/2/ Technology Corp.
---------------------------------
which is the GP of Executive Technology
---------------------------------------
Core Technology Fund Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Managing Director
---------------------------------
A-18
Sci Tech Investment Partners L.P.
By: S/2/ Technology Corp., its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: President, S/2/ Technology Corp.
---------------------------------
which is the GP of Sci-Tech Investment
---------------------------------------
Partner
---------------------------------------
The Matrix Technology Group NV
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Managing Director
--------------------------------
Yale University
By: S/2/ Technology Corp.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: President, S/2/ Technology Corp.
---------------------------------
Yale University Retirement Plan for Staff Employees
By: S/2/ Technology Corp.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: President, S/2/ Technology Corp.
---------------------------------
A-19
SG Partners L.P.
By: S/2/ Technology Corp., its General Partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: President, S/2/ Technology Corp.
---------------------------------
which is the GP of SG Partners
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A-20
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇
--------------------------
(▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇)
A-21
Kensington Partners L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇
-------------------------------------
By: ▇▇▇▇ ▇▇▇▇
Title: General Partner
---------------------------------
Acorn Investment Trust
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Cheif Executive Officer
---------------------------------
A-22
Shares Cash Date
Investor Name Purchased Tendered Rec'd
------------- --------- --------- ------
CLOSING OF FEBRUARY 29, 1996
Neill and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 16,000 $ 56,000.00 2/29
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 6,000 $ 21,000.00 2/29
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 6,000 $ 21,000.00 2/29
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Will ▇. ▇▇▇▇▇▇ 6,000 $ 21,000.00 2/29
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 6,000 $ 21,000.00 2/29
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 14,286 $ 50,001.00
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 14,286 $ 50,001.00
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 57,143 $ 200,000.50
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 20,000 $ 70,000.00 2/28
Giga Information Group, Inc.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 6,000 $ 21,000.00 2/28
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, #▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A-23
Shares Cash Date
Investor Name Purchased Tendered Rec'd
------------- --------- --------- ------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,300 $ 4,550.00 2/28
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 25,000 $ 87,500.00 2/28
▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ 28,571 $ 99,998,50
▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RRE Giga Investors II, L.P. 288,571 $ 1,009,998.50 2/28
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ 14,286 $ 50,001.00
▇▇▇▇▇▇▇ Technology Partners
Whiteweld Centre
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Technology Partners III 85,715 $ 300,002.50
Whiteweld Centre
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇ 2,857 $ 9,999.50 2/28
▇▇▇▇▇▇▇▇▇▇ Securities
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Gilo Family Partnership 16,000 $ 56,000.00 2/28
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇ 60,000 $ 210,000.00 2/28
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ --------------
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Total: $ 2,359,052.50
==============
A-24
THE INVESTORS:
-------------
Name of Investor:
Neill and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
By: /s/ Neill ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Name of Investor:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name:
-----------------------------------
Title:
---------------------------------
Name of Investor:
▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A-25
Name of Investor:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name:
----------------------------------
Title:
----------------------------------
Name of Investor:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title:
---------------------------------
Name of Investor:
▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Name of Investor:
▇▇▇▇▇▇▇ Technology Partners III
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A-26
Name of Investor:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Name of Investor:
Gilo Family Partnership
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By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Title:
----------------------------------
Name of Investor:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
A-27
Name of Investor:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name:
----------------------------------
Title:
----------------------------------
Name of Investor:
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇
---------------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇
------------------------------------
Name:
----------------------------------
Title:
----------------------------------
Name of Investor:
RRE GIGA INVESTORS II, L.P.
By: RRE PARTNERS, L.L.C.,
as General Partner
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By: RRE Investors, L.L.C.,
as Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Class A Member
-----------------------------
Name of Investor:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name:
----------------------------------
Title:
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A-28
Name of Investor:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
Name of Investor:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name:
----------------------------------
Title:
---------------------------------
Name of Investor:
Will ▇. ▇▇▇▇▇▇
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By: /s/ Will ▇. ▇▇▇▇▇▇
----------------------------------
Name of Investor:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name of Investor:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
By: /s/ Neill ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Father
A-29