AMENDMENT NO. 3
TO
CO-SALE AND STOCK RESTRICTION AGREEMENT
This Amendment No. 3, dated May ___, 1998 (the "Amendment"), to the
Co-Sale and Stock Restriction Agreement, dated November 13, 1995, as amended
(the "Agreement"), among Giga Information Group, Inc., a Delaware corporation
(the "Company"), Xxxxxx X. Xxxxxxx (the "Founder") and the Stockholders
signatory thereto (the "Stockholders"), is entered into by the Company, the
Founder and the undersigned Stockholders.
WHEREAS, the Company proposes to register shares of its Common Stock
under the Securities Act of 1933, as amended (the "Securities Act"), in
connection with the public offering solely for cash of at least $30 million of
Common Stock at a minimum price to the public of $3.75 per share (as adjusted
for any stock split, stock dividend, subdivision or combination of the Common
Stock);
WHEREAS, the Agreement, which provides for restrictions on transfer
and rights of first offer with respect to sales of equity securities of the
Company by the Founder, terminates upon, among other events, the date two
years following the closing of a firmly written underwritten public offering
pursuant to a registration statement (other than a registration statement
relating to certain sales of securities to employees) under the Securities Act
covering the Company's Common Stock, par value $0.001 per share (an "IPO"),
which results in aggregate cash proceeds (prior to underwriters' commissions
and expenses) to the Company and any selling stockholders of at least
$15,000,000 and which has a public offering price of not less than $5.25 per
share (as adjusted for any stock split, stock dividend, subdivision or
combination of the Common Stock);
WHEREAS, the Company and the Founder wish to amend the termination
provisions of the Agreement such that, in addition to the existing termination
events, the Agreement terminates upon the date two years following the closing
of an IPO which results in aggregate cash proceeds (prior to underwriters'
commissions and expenses) to the Company and any selling stockholders of at
least $30,000,000, which has a public offering price of not less than $3.75
per share (as adjusted for any stock split, stock dividend, subdivision or
combination of the Common Stock) and which closes on or before January 31,
1999; and
WHEREAS, Section 7.2 of the Agreement provides that any provision of
the Agreement may be amended upon the written consent of all of (i) the
Company, (ii) the holders of at least a majority in interest of the Common
Stock and Preferred Stock of the Company held by the Stockholders and their
assignees and (iii) the Founder.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Amendment. Acting in accordance with Section 7.2 of the Agreement,
the first sentence of Section 7.4 of the Agreement is hereby amended to read
in its entirety as follows:
"This Co-Sale and Stock Restriction Agreement shall terminate upon
the earlier of (i) the date two years following the closing of a
firmly written 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 (an
"IPO"), which results in aggregate cash proceeds (prior to
underwriters' commissions and expenses) to the Company and any
selling stockholders of at least $15,000,000 and which has a public
offering price of not less than $5.25 per share (as adjusted for any
stock split, stock dividend, subdivision or combination of the Common
Stock); (ii) the date two years following the closing of an IPO which
results in aggregate cash proceeds (prior to underwriters'
commissions and expenses) to the Company and any selling stockholders
of at least $30,000,000, which has a public offering price of not
less than $3.75 per share (as adjusted for any stock split, stock
dividend, subdivision or combination of the Common Stock) and which
closes on or before January 31, 1999; or (iii) the closing of the
Company's sale of all or substantially all of its assets or the
acquisition of the Company by another entity by means of merger or
consolidation resulting in the exchange of the outstanding shares of
the Company's capital stock for securities or consideration issued,
or caused to be issued, by the acquiring entity or its subsidiary."
2. The Agreement, as supplemented and modified by this Amendment,
together with the other writings referred to in the Agreement or delivered
pursuant thereto which form a part thereof, contain the entire agreement among
the parties with respect to the subject matter thereof and amend, restate and
supersede all prior and contemporaneous arrangements or understandings with
respect thereto.
3. Upon the effectiveness of this Amendment, on and after the date
hereof, each reference in the Agreement to "this Agreement," "hereunder,"
"hereof," "herein," or words of like import, and each reference in the other
documents entered into in connection with the Agreement, shall mean and be a
reference to the Agreement, as amended hereby. Except as specifically amended
above, the Agreement shall remain in full force and effect and is hereby
ratified and confirmed.
4. This Amendment shall be governed by the laws of the State of New
York, notwithstanding the conflict-of-law doctrines of New York or any other
jurisdiction to the contrary.
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5. This Amendment may be executed in any number of counterparts, and
each such counterpart shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
No. 3 to the Co-Sale and Stock Restriction Agreement on the date first above
written.
The Company:
GIGA INFORMATION GROUP, INC.
By:
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Chief
Financial Officer, Treasurer
and Secretary
The Founder:
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Xxxxxx X. Xxxxxxx
The Series B and Series C Preferred Stockholders:
Name of Stockholder (print):
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By:
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Name:
Title:
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