Exhibit (d)(4)
TENDER AGREEMENT
THIS TENDER AGREEMENT (this "Agreement") dated January 20, 2003, is
entered into between, XXXXXXXXX RESEARCH, INC., a Delaware corporation
("Parent"), XXXXXXXX ACQUISITION CORP., a Delaware corporation and wholly owned
subsidiary of Parent ("Sub"), and X.X. XXXXXXXXX + CO., INC. ("Shareholder"),
with respect to the shares of common stock, par value $0.001 per share (the
"Company Common Stock"), of Giga Information Group, Inc., a Delaware corporation
(the "Company"), owned by Shareholder.
W I T N E S S E T H:
WHEREAS, Parent, Sub and the Company have entered into an Agreement and
Plan of Merger dated as of the date hereof, a copy of which has been provided to
Shareholder (the "Merger Agreement") pursuant to which Sub has agreed to make a
cash tender offer described therein and thereafter merge with and into the
Company (the "Merger") with the result that the Company becomes a wholly owned
subsidiary of Parent;
WHEREAS, as of the date hereof, Shareholder
(i) beneficially owns, and has pledged to Park Avenue Equity Partners,
L.P., as collateral agent ("Collateral Agent") 800,000 shares of
Company Common Stock, pursuant to a Pledge Agreement dated as of
November 15, 2002 (as amended to date, the "Pledge Agreement") (such
800,000 shares of Company Common Stock, together with any securities
issued or exchanged with respect to such shares of Company Common
Stock, and upon any recapitalization, reclassification, merger,
consolidation, spin-off, partial or complete liquidation, stock
dividend, split-up or combination of the securities of the Company
or any other change in the Company's capital structure, are
collectively referred to herein collectively as the "Securities"),
and the parties hereto have, as of the date hereof, entered into a
side letter with Collateral Agent in the form of Exhibit A hereto
(the "Side Letter"); and
(ii) beneficially owns, and has pledged to Fiserv Securites, Inc.
("FSI"), an additional 500,000 shares of Company Common Stock (the
"FSI Shares" together with any securities issued or exchanged with
respect to such shares of Company Common Stock, and upon any
recapitalization, reclassification, merger, consolidation, spin-off,
partial or complete liquidation, stock dividend, split-up or
combination of the securities of the Company or any other change in
the Company's capital structure, are collectively referred to herein
collectively as the "FSI Securities"), pursuant to a Stock Pledge
Agreement dated December 12, 2002 (the "FSI Pledge Agreement"). For
purposes of clarity, the parties confirm that the "Securities" as
referred to herein do not include the FSI Securities.
WHEREAS, Parent and Sub desire to enter into this Agreement in connection
with their efforts to consummate the acquisition of the Company, and in
consideration of Parent's and
Sub's agreements herein and in the Merger Agreement, Shareholder has agreed to
cooperate with Parent and Sub with respect to the acquisition of the Company by
Parent and Sub upon the terms and subject to the conditions in the Merger
Agreement; and
WHEREAS, capitalized terms used in this Agreement and not defined have the
meaning given to such terms in the Merger Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Certain Covenants.
1.1 Lock-Up. Subject to Section 1.4, Shareholder hereby covenants
and agrees that during the term of this Agreement, Shareholder will not (a)
directly or indirectly, sell, transfer, assign, pledge, hypothecate, tender,
encumber or otherwise dispose of or limit its right to vote in any manner any of
the Securities, or agree to do any of the foregoing, or (b) take any action
which would have the effect of preventing or disabling Shareholder from
performing its obligations under this Agreement. Notwithstanding the foregoing,
in connection with any transfer not involving or relating to any Company
Takeover Proposal, Shareholder may transfer any or all of the Securities to any
subsidiary, partner, stockholder, or member of Shareholder (collectively,
"Constituents") and, each Constituent may in turn transfer any or all of the
Securities it may receive to any of its Constituents; provided, however, that in
any such case, prior to and as a condition to the effectiveness of such
transfer, (x) each person or entity to which any of such Securities or any
interest in any of such Securities is or may be transferred (a) shall have
executed and delivered to Parent and Sub a counterpart to this Agreement
pursuant to which such person or entity shall be bound by all of the terms and
provisions of this Agreement, and (b) shall have agreed in writing with Parent
and Sub to hold such Securities or interest in such Securities subject to all of
the terms and provisions of this Agreement, and (y) this Agreement shall be the
legal, valid and binding agreement of such person, enforceable against such
person in accordance with its terms, subject to the qualification, however, that
enforcement of the rights and remedies created by this Agreement is subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general application related to or affecting creditors' rights
and to general equity principles.
1.2 No Solicitation. During the term of this Agreement, neither the
Shareholder nor any director, officer, agent, representative, employee,
affiliate or associate (collectively, "Representatives") of Shareholder shall,
directly or indirectly, (a) solicit, initiate or encourage the submission of any
Company Takeover Proposal (as defined in the Merger Agreement) or any other
sale, transfer, pledge or other disposition or conversion of any of the
Securities or (b) participate in or encourage any discussion or negotiations
regarding, or furnish to any person any non-public information with respect to,
enter into any agreement with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any Company Takeover Proposal or any other sale,
transfer, pledge or other disposition or conversion of any of the Securities, in
any case, from, to or with any person other than Parent or Sub. Shareholder will
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any such
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other parties conducted heretofore with respect to any of the foregoing.
Shareholder will notify Parent immediately if any party contacts the Shareholder
following the date hereof (other than Parent and Sub) concerning any Company
Takeover Proposal or any other sale, transfer, pledge or other disposition or
conversion of any of the Securities.
1.3 Voting Agreement.
(a) The Shareholder has revoked or terminated any proxies,
voting agreements or similar arrangements previously given or entered into
with respect to the Securities and/or the FSI Securities, and hereby
agrees to vote the Securities and, for so long as Shareholder has power to
vote same, the FSI Securities, at any annual, special or other meeting or
action of the shareholders of the Company, as applicable, or at any
adjournment thereof or pursuant to any consent of the shareholders of the
Company, in lieu of a meeting or otherwise, whether before or after the
closing of the Offer (as defined in the Merger Agreement), in the
following manner: (i) for the adoption and approval of the Merger
Agreement and the Merger and (ii) against any extraordinary corporate
transaction (other than the Merger), such as a merger, consolidation,
business combination, tender or exchange offer, reorganization,
recapitalization, liquidation, sale or transfer of a material amount of
the assets or securities of the Company or any of its subsidiaries (other
than pursuant to the Merger) or any other change of control involving the
Company or any of its subsidiaries, including, but not limited to, any
Company Takeover Proposal.
(b) The provisions of Section 1.3(a) shall not be terminated
by any act of the Shareholder or by operation of law, whether by the death
or incapacity of the Shareholder or by the occurrence of any other event
or events (including, without limiting the foregoing, the termination of
any trust or estate for which Shareholder is acting as a fiduciary or
fiduciaries or the dissolution or liquidation of any corporation or
partnership). If between the execution hereof and the Termination Date,
Shareholder should die or become incapacitated, or if any trust or estate
holding the Securities should be terminated, or if any corporation or
partnership holding the Securities should be dissolved or liquidated, or
if any other such similar event or events shall occur before the
Termination Date, certificates representing the Securities shall be
delivered by or on behalf of Shareholder in accordance with the terms and
conditions of the Merger Agreement and this Agreement.
1.4 Tender of Securities. Shareholder agrees to instruct Collateral
Agent to tender, in accordance with the Side Letter, the Securities to Sub in
the Offer as soon as practicable following the commencement of the Offer, and in
any event not later five (5) business days following the commencement of the
Offer and Shareholder shall not withdraw any Securities so tendered unless the
Offer is terminated or has expired. Subject to the terms and conditions of the
Offer and the Merger Agreement, Sub hereby agrees to purchase the shares of
Company Common Stock so tendered at a cash price per share equal to $4.75 (the
"Purchase Price") or any higher price that may be paid in the Offer; provided,
however, that Sub's obligations to accept for payment and pay for the Securities
in the Offer is subject to all the terms and conditions of the Offer set forth
in the Merger Agreement and Exhibit A thereto.
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1.5 Public Announcement. Shareholder shall consult with Parent
before issuing any press releases or otherwise making any public statements with
respect to the transactions contemplated herein and shall not issue any such
press release or make any such public statement without the approval of Parent,
except as may be required by law.
1.6 Disclosure. Shareholder hereby authorizes Parent and Sub to
publish and disclose in any announcement or disclosure required by the
Securities and Exchange Commission ("the "SEC"), the National Association of
Securities Dealers, Inc. (the "NASD"), the NASDAQ National Market or any other
national securities exchange and in the Offer Documents and, if necessary, the
Proxy Statement (each as defined in the Merger Agreement), (including all
documents and schedules filed with the SEC in connection with either of the
foregoing), its identity and ownership of the Securities and the nature of its
commitments, arrangements and understandings under this Agreement. Parent and
Sub hereby authorize Shareholder to make such disclosure or filings as may be
required by the SEC, the NASD, the NASDAQ National Market or any other national
securities exchange.
1.7 Stop Transfer Instruction; Legend.
(a) Promptly following the date hereof, Shareholder, with the
permission of Collateral Agent, and Sub shall deliver joint written
instructions to the Company and to the Company's transfer agent stating
that the Securities may not be sold, transferred, pledged, assigned,
hypothecated, tendered or otherwise disposed of in any manner without the
prior written consent of Sub or except in accordance with the terms and
conditions of this Agreement.
(b) Promptly following the date hereof, Shareholder shall
permit, with the permission of the Collateral Agent, a legend to be placed
on the certificates (to the extent the Securities are certificated)
representing the Securities as set forth below:
"The Securities represented by this certificate are subject to
restrictions on transfer and may not be sold, transferred, pledged,
assigned, hypothecated, tendered or otherwise disposed of except in
accordance with and subject to the terms and conditions of a Tender
Agreement dated January 20, 2003, between the registered holder
hereof and XXXXXXXXX RESEARCH, INC.
The parties hereto agree that the legend set forth above shall be removed
only upon delivery to the Company's transfer agent of written notice
signed by Sub (which notice shall not be unreasonably withheld or delayed)
that this Agreement has terminated and the restrictions set forth in the
legend above are of no further force and effect.
2. Representations and Warranties of Shareholder. Shareholder hereby
represents and warrants to Parent and Sub, as of the date hereof and as of the
date Sub purchases shares of Company Common Stock pursuant to the Offer, that:
2.1 Ownership. Shareholder has good and marketable title to, and is
the sole legal and beneficial owner of the Securities, in each case free and
clear of all liabilities, claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character
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whatsoever (collectively, "Liens") except for Liens in favor of the Collateral
Agent pursuant to the Pledge Agreement. At the time Sub purchases shares of
Company Common Stock pursuant to the Offer, Shareholder will transfer and convey
to Parent or its designee good and marketable title to the shares of Company
Common Stock included in the Securities, free and clear of all Liens created by
or arising through Shareholder.
2.2 Authorization. Shareholder has all requisite power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and has sole voting power and sole power of disposition,
with respect to the Securities with no restrictions on its voting rights or
rights of disposition pertaining thereto except as granted in favor of
Collateral Agent pursuant to the Pledge Agreement. Shareholder has duly executed
and delivered this Agreement and this Agreement is a legal, valid and binding
agreement of Shareholder, enforceable against Shareholder in accordance with its
terms, subject to the qualification, however, that enforcement of the rights and
remedies created hereby is subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general application
related to or affecting creditors' rights and to general equity principles.
2.3 No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (a)
require the Shareholder to file or register with, or obtain any material permit,
authorization, consent or approval of, any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity, or (b) violate, or cause a breach of or default under, any
contract, agreement or understanding, any statute or law, or any judgment,
decree, order, regulation or rule of any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity or any arbitration award binding upon the Shareholder,
except for such violations, breaches or defaults which are not reasonably likely
to have a material adverse effect on the Shareholder's ability to satisfy its
obligations under this Agreement. No proceedings are pending which, if adversely
determined, will have a material adverse effect on any ability to vote or
dispose of any of the Securities. The Shareholder has not previously assigned or
sold any of the Securities to any third party.
2.4 Shareholder Has Adequate Information. Shareholder is a
sophisticated seller with respect to the Securities and has adequate information
concerning the business and financial condition of the Company to make an
informed decision regarding the sale of the Securities and has independently and
without reliance upon either Sub or Parent and based on such information as
Shareholder has deemed appropriate, made its own analysis and decision to enter
into this Agreement. Shareholder acknowledges that neither Sub nor Parent has
made and neither makes any representation or warranty, whether express or
implied, of any kind or character except as expressly set forth in this
Agreement. Shareholder acknowledges that the agreements contained herein with
respect to the Securities by Shareholder is irrevocable, and that Shareholder
shall have no recourse to the Securities or Parent, except with respect to
breaches of representations, warranties, covenants and agreements expressly set
forth in this Agreement.
2.5 Parent's Excluded Information. Shareholder acknowledges and
confirms that (a) Sub or Parent may possess or hereafter come into possession of
certain non-public information concerning the Securities and the Company which
is not known to Shareholder and which may be material to Shareholder's decision
to sell the Securities ("Parent's Excluded
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Information"), (b) Shareholder has requested not to receive Parent's Excluded
Information and has determined to sell the Securities notwithstanding its lack
of knowledge of Parent's Excluded Information, and (c) Parent shall have no
liability or obligation to Shareholder in connection with, and Shareholder
hereby waives and releases Parent from, any claims which Shareholder or its
successors and assigns may have against Parent (whether pursuant to applicable
securities, laws or otherwise) with respect to the non-disclosure of Parent's
Excluded Information; provided, however, nothing contained in this Section 2.5
shall limit Shareholder's right to rely upon the express representations and
warranties made by Parent in this Agreement, or Shareholder's remedies in
respect of breaches of any such representations and warranties.
2.6 No Setoff. The Shareholder has no liability or obligation to the
Company related to or in connection with the Securities other than the
obligations to Parent and Sub as set forth in this Agreement.
2.7 No Amounts Payable to Shareholder. There are no amounts due or
payable by the Company or any Company Subsidiary to the Shareholder or any of
its affiliates or associates in connection with the transactions contemplated by
the Merger Agreement or this Agreement.
3. Representations and Warranties of Parent and Sub. Parent and Sub hereby
represent and warrant to Shareholder, as of the date hereof that:
3.1 Authorization. Parent and Sub have all requisite corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. Parent and Sub have duly executed and
delivered this Agreement and this Agreement is a legal, valid and binding
agreement of each of Parent and Sub, enforceable against each of Parent and Sub
in accordance with its terms, subject to the qualification however, that
enforcement of the rights and remedies created hereby is subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general application related to or affecting creditors' rights and to general
equity principles.
3.2 No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (a)
require Parent to file or register with, or obtain any material permit,
authorization, consent or approval of, any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity, or (b) violate, or cause a breach of or default under, any
contract, agreement or understanding, any statute or law, or any judgment,
decree, order, regulation or rule of any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity or any arbitration award binding upon Parent or Sub, except
for such violations, breaches or defaults which are not reasonably likely to
have a material adverse effect on each of Parent's or Sub's ability to satisfy
its obligations under this Agreement.
4. Survival of Representations and Warranties. The respective
representations and warranties of Shareholder and Parent contained herein shall
not be deemed waived or otherwise affected by any investigation made by the
other party hereto, and each representation and
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warranty contained herein shall survive the closing of the transactions
contemplated hereby until the expiration of the applicable statute of
limitations, including extensions thereof.
5. No Control. Nothing contained in this Agreement shall give Parent or
Sub the right to control or direct the Company or the Company's operations.
6. Specific Performance. Shareholder acknowledges that Sub and Parent will
be irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of Shareholder which are
contained in this Agreement. It is accordingly agreed that, in addition to any
other remedies which may be available to Sub and Parent upon the breach by
Shareholder of such covenants and agreements, Sub and Parent shall have the
right to obtain injunctive relief to restrain any breach or threatened breach of
such covenants or agreements or otherwise to obtain specific performance of any
of such covenants or agreements.
7. Miscellaneous.
7.1 Term.
(a) This Agreement shall terminate upon the earlier of (i)
the consummation of the Merger or the termination of the
Merger Agreement pursuant to Section 8.01 thereof (the
"Termination Date"). At the Termination Date, this
Agreement shall thereupon become void and be of no
further force and effect, provided that nothing herein
shall relieve any party from liability hereof for
breaches of this Agreement prior to the Termination
Date.
(b) Section 7.1(a) notwithstanding, Shareholder may
immediately terminate this Agreement in the event that
(i) the Merger Agreement is amended to reduce the
Purchase Price below $4.00 or (ii) the Offer is not
consummated by April 30, 2003.
(c) Upon termination of this Agreement for any reason other
than the consummation of the Merger, at Shareholder's
request and without further consideration, Parent and
Sub shall execute and deliver to Shareholder such
documents, and promptly take such other action as
Shareholder may reasonably request, in order to unwind
this Agreement, including but not limited to removal of
any legend made under Section 1.7 hereof.
7.2 Expenses. Each of the parties hereto shall pay its own expenses
incurred in connection with this Agreement. Each of the parties hereto warrants
and covenants to the others that it will bear all claims for brokerage fees
attributable to action taken by it.
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7.3 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
representatives and permitted successors and assigns.
7.4 Entire Agreement. This Agreement, together with the Side Letter,
contains the entire understanding of the parties and supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Agreement may be amended only by a written instrument duly executed
by the parties hereto.
7.5 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Time is of the essence with respect to all
provisions of this Agreement.
7.6 Assignment. No party may assign either this Agreement or any of
its rights, interests, or obligations hereunder without the prior written
approval of the other parties; provided, however, that each of Parent and Sub
may freely assign its rights to another direct or indirect wholly owned
subsidiary of Parent or Sub without such prior written approval but no such
assignment shall relieve Parent or Sub of any of its obligations hereunder. Any
purported assignment without such consent shall be void.
7.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
7.8 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if so given) by delivery, telegram or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses (or at such other address for a party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof):
(a) If to Parent Xxxxxxxxx Research, Inc.
or Sub: 000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx, Esq.
Telecopy: 000-000-0000
with a copy to: Ropes & Xxxx
0 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Xxx X. Xxxxxx, Esq.
Telecopy: 000-000-0000
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(b) If to
Shareholder: X.X. Xxxxxxxxx + Co., Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Telecopy: 000-000-0000
with a copy to:
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Attention:
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Telecopy:
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7.9 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of The Commonwealth ------------- of
Massachusetts, without regard to its principles of conflicts of laws.
7.10 Enforceability. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
7.11 Further Assurances. From time to time at or after the date Sub
purchases shares of Company Common Stock pursuant to the Offer, at Parent's
request and without further consideration, Shareholder shall execute and deliver
to Parent such documents and take such action as Parent may reasonably request
in order to consummate more effectively the transactions contemplated hereby and
to vest in Parent good, valid and marketable title to the Securities, including,
but not limited to, using its best efforts to cause the appropriate transfer
agent or registrar to transfer of record the Securities.
7.12 Remedies Not Exclusive. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity will be cumulative and not alternative, and the exercise of any
thereof by either party will not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
7.13 Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7.14 FSI Shares. Shareholder agrees that, promptly after the public
announcement of the Offer by Parent, Shareholder shall contact FSI concerning
the FSI Shares and shall use its reasonable commercial efforts to obtain from
FSI an agreement with FSI (a "New FSI Agreement") that in substance would permit
Shareholder to tender the FSI Shares to Sub in the same manner as provided
herein with respect to the Securities under Section 1.4 and under the Side
Letter and if the New FSI Agreement is obtained will enter into agreements with
respect to the FSI Securities in substantially the form of this Agreement and
the Side Letter; provided however that Shareholder shall not be obligated to pay
any consideration to FSI in
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order to secure a New FSI Agreement and, should FSI refuse to agree to a New FSI
Agreement, Shareholder's obligations under this Section shall thereupon
terminate.
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IN WITNESS WHEREOF, Parent, Sub and Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
XXXXXXXXX RESEARCH, INC.
By: /s/ Xxxxxx X. Colony
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Name: Xxxxxx X. Colony
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Title: Chairman and CEO
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XXXXXXXX ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: President
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X.X. XXXXXXXXX + CO., INC.
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
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Title: Co-Controller
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