EXHIBIT 10.7
GIGA INFORMATION GROUP, INC.
CO-SALE AND STOCK RESTRICTION AGREEMENT
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This Co-Sale and Stock Restriction Agreement (the "Agreement") is made as
of the 13th day of November, 1995 by and among Xxxxxx Xxxxxxx ("Founder"), Giga
Information Group, Inc., a Delaware corporation (the "Company"), and the
undersigned holders of Series B Preferred Stock (the "Stockholders").
In consideration of the mutual covenants set forth herein, the parties
agree as follows:
1. Definitions.
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(a) "Stock" shall mean, on a fully diluted basis, the shares of the
Company's Common Stock now owned by the Founder, including any shares of Common
Stock issuable upon conversion or exercise of any warrants, options or Preferred
Stock held by the Founder.
(b) "Preferred Stock" shall mean the Company's outstanding Series B
Preferred Stock, $.001 par value.
(c) "Common Stock" shall mean the Company's Common Stock, $.001 par value.
2. Sales by Founder.
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(a) Except in the case of any sale or transfer pursuant to the provisions
of paragraphs 4(a) or 4(b) of this Agreement, if the Founder proposes to sell or
transfer shares of Stock in one or more transactions then the Founder shall
promptly give written notice (the "Notice") to the Company and the Stockholders
at least twenty (20) days prior to the closing of such sale or transfer. The
Notice shall describe in reasonable detail the terms of such proposed sale or
transfer including, without limitation, the number of shares of Stock to be sold
or transferred, the nature of such sale or transfer, the consideration to be
paid, and the name and address of each prospective purchaser or transferee.
(b) Each Stockholder shall have the right, exercisable upon written notice
to such Founder within fifteen (15) days after receipt of the Notice, to
participate pro-rata in such sale of Stock on the same terms and conditions. To
the extent one or more of the Stockholders exercise such right of participation
in accordance with the terms and conditions set forth below, the number of
shares of Stock that the Founder may sell in the transaction shall be
correspondingly reduced subject to the proviso in the preceding sentence.
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(c) Each Stockholder may sell all or any part of that number of shares of
Preferred Stock, or Common Stock then owned by it, or Common Stock issuable upon
conversion of Preferred Stock then owned (the "Stockholder Shares") equal to the
product obtained by multiplying (i) the aggregate number of shares of Stock
covered by the Notice by (ii) a fraction the numerator of which is the number of
Stockholder Shares owned by such Stockholder at the time of the sale or transfer
and the denominator of which is the total number of shares of Preferred Stock
and Common Stock then held by the Stockholders and the Founder (subject to
Section 2(e)).
(d) If any Stockholder fails to elect to fully participate in such
Founder's sale pursuant to this Section 2, the Founder shall give notice of such
failure to the Stockholders who did so elect (the "Participants"). Such notice
may be made by telephone if confirmed in writing within two (2) days. The
Participants shall have five (5) days from the date such notice was given to
agree to sell their pro rata share of the unsold portion. For purposes of this
paragraph, and subject to Section 2(e), a Participant's pro rata share shall be
the ratio of (x) the number of shares of Common Stock or Preferred Stock held by
such Participant to (y) the total number of shares of Common Stock and Preferred
Stock held by all Participants and the Founder.
(e) In the event that the Founder shall sell Stock in one or more exempt
trans actions pursuant to clause (a) of Section 4 representing the full amount
of Stock permitted to be sold under such clause, then as to any subsequent
proposed sales of Stock by the Founder representing up to the lesser of (a)
200,000 shares or (b) shares sold or to be sold for aggregate proceeds of up to
$1,000,000, then for purposes of Section 2(c), a Stockholder's pro rata share
shall be the ratio of (x) the number of shares of Common Stock, and Common Stock
issuable upon conversion of Preferred Stock, held by such Stockholder to (y) the
total number of shares of Common Stock, and Common Stock issuable upon
conversion of Preferred Stock, held by all Stockholders.
(f) Each Participant shall effect its participation in the sale by promptly
delivering to the Founder for transfer to the prospective purchaser one or more
certificates, properly endorsed for transfer, which represent:
(i) the type and number of shares of Common Stock which such Participant
elects to sell; or
(ii) that number of shares of Series A or Series B Preferred Stock which is
at such time convertible into the number of shares of Common Stock which such
Participant elects to sell; provided, however, that if the prospective purchaser
objects to the delivery of Series A or Series B Preferred Stock in lieu of
Common Stock, such Participant shall convert such Preferred Stock into Common
Stock and deliver Common Stock as provided in subparagraph 2(e)(i) above. The
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Company agrees to make any such conversion concurrent with the actual transfer
of such shares to the purchaser.
(g) The stock certificate or certificates that the Participant delivers to
the Founder pursuant to paragraph 2(e) shall be transferred to the prospective
purchaser in consummation of the sale of the Stock pursuant to the terms and
conditions specified in the Notice, and the Founder shall concurrently therewith
remit to such Participant that portion of the sale proceeds to which such
Participant is entitled by reason of its participation in such sale. To the
extent that any prospective purchaser or purchasers prohibits such assignment or
otherwise refuses to purchase shares or other securities from a Participant
exercising its rights of co-sale hereunder, the Founder shall not sell to such
prospective purchaser or purchasers any Stock unless and until, simultaneously
with such sale, the Founder shall purchase such shares or other securities from
such Participant.
(h) The exercise or non-exercise of the rights of the Participants
hereunder to participate in one or more sales of Stock made by the Founder shall
not adversely affect their rights to participate in subsequent sales of Stock
subject to paragraph 2(a).
3. Right Of First Offer.
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3.1 General. Each Stockholder has the right of first offer to purchase
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such Stockholder's Pro Rata Share (as defined below), of all (or any part) of
any stock that the Founder may from time to time propose to sell after the date
of this Agreement. A Stockholder's "Pro Rata Share" for purposes of this right
of first offer is the ratio of (x) the number of shares of Common Stock and
Preferred Stock held by such Stockholders to (y) the total number of shares of
Common Stock and Preferred Stock held by the Stockholders and the Founder.
3.2 Subordination. The right of first offer granted herein to the
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Stockholders under this Section 3 shall be subject to any right of first offer,
or similar right, granted by the Founder to the Company relating to the Common
Stock of the Company pursuant to any agreements or instruments executed by the
Founder in connection with the grant to the Founder or exercise by the Founder
of any options, or the purchase by the Founder of any Common Stock.
3.3 Procedures. In the event that the Founder proposes to sell Stock, it
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shall give to each Stockholder written notice of his intention to sell Stock
(the "Notice"), describing the type of Stock and the price and the general terms
upon which the Founder proposes to sell such Stock. Each Stockholder shall have
ten (10) business days from the date of receipt of any such Notice to agree in
writing to purchase such Stockholder's Pro Rata Share of such Stock for the
price and upon the general terms specified in the Notice by giving written
notice to the Founder and
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stating therein the number of shares of Stock to be purchased (not to exceed
such Stockholder's Pro Rata Share). If any Stockholder fails to so agree in
writing within such ten (10) day period to purchase such Stockholder's full Pro
Rata Share of a sale of Stock (a "Nonpurchasing Stockholder"), then such
Nonpurchasing Stockholder shall forfeit the right hereunder to purchase that
part of his Pro Rata Share of such Stock that he did not so agree to purchase,
and the Founder shall give notice of such failure to the Stockholders who did so
elect (the "Purchasing Stockholders"). Such notice may be made by telephone if
confirmed in writing within two (2) days. The Purchasing Stockholders shall have
five (5) days from the date such notice was given to agree to sell their pro
rata share of the unsold portion. For purposes of this paragraph, and subject to
Section 2(e), a Participant's pro rata share shall be the ratio of (x) the
number of shares of Common Stock or Preferred Stock held by such Participant to
(y) the total number of shares of Common Stock and Preferred Stock held by all
Purchasing Stockholders and the Founder.
3.4 Failure to Exercise. In the event that the Stockholders fail to
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exercise in full their rights of first offer as set forth in this Section 3
within the prescribed period, then the Founder shall have 120 days thereafter to
sell the Stock with respect to which the Stockholders' rights of first offer
hereunder were not exercised, at a price and upon general terms not materially
more favorable to the purchasers thereof than specified in the Founder's Notice
to the Stockholders. In the event that the Founder has not sold the Stock within
such 120-day period, then the Founder shall not thereafter sell any Stock
without again first offering such Stock to the Stockholders pursuant to this
Section 3.
4. Exempt Transfers. Notwithstanding the foregoing:
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(a) Section 2 hereof shall not apply to (i) sale of Stock if, after giving
effect thereto, the Founder shall have sold less than an aggregate of the lesser
of (a) 200,000 shares or (b) shares for aggregate proceeds of less than
$1,000,000 after the date of this Agreement, or (ii) any sale of Stock to the
Company;
(b) neither Section 2 nor Section 3 hereof shall apply to (i) sales and
transfers of not more than 200,000 shares in any year to employees, directors or
strategic partners of the Company or its subsidiaries in connection with bona
fide compensation arrangements, licensing transactions, consulting arrangements
and the like; (ii) any pledge of Stock made pursuant to a bona fide loan
transaction that creates a mere security interest; (iii) any transfer to the
ancestors, descendants or spouse of the Founder or to trusts for the benefit of
such persons or the Founder; or (iv) any bona fide gift; provided that (A) the
Founder shall inform the Stockholders of such sale, pledge, transfer or gift
prior to effecting it and (B) in the case of transfers or gifts under clauses
(iii) and (iv), the transferee or donee shall furnish the Stockholders with a
written agreement to be bound by and comply with all provisions of Sections 2
and 3;
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(c) upon and after the consummation of a Qualified Public Offering (as
defined in Section 7.4), the provisions of Section 2 and Section 3 hereof shall
only apply to privately negotiated sales, and shall not apply to offers and
sales to the public; and
(d) the provisions of Section 2 and Section 3 hereof shall not apply to the
sale of any Stock (i) to the public pursuant to a registration statement filed
with, and declared effective by, the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Securities Act"), or (ii) if prior
to such sale, the Founder held less than 5% of the Company's outstanding shares.
In the case of a transfer pursuant to clauses (b)(iii) or (iv), such
transferred Stock shall remain "Stock" hereunder, and such pledgee, transferee
or donee shall be treated as a "Founder" for purposes of this Agreement.
5. Prohibited Transfers.
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(a) Notwithstanding any other provision set forth herein, the Founder
agrees that he will not sell or transfer more than an aggregate of 800,000
shares of Stock during the three year period ending November 1, 1998 except in
transactions permitted by Section 4.
(b) In the event the Founder sells any Stock in contravention of the terms
of this Agreement (a "Prohibited Transfer"), the Stockholders, in addition to
such other remedies as may be available at law, in equity or hereunder, shall
have the put option provided below, and the Founder shall be bound by the
applicable provisions of such option.
(c) In the event of a Prohibited Transfer, each Stockholder shall have the
right to sell to the Founder the type and number of shares of Stock equal to the
number of shares each Stockholder would have been entitled to transfer to the
purchaser under Section 2(c) hereof had the Prohibited Transfer been effected
pursuant to and in compliance with the terms hereof. Such sale shall be made on
the following terms and conditions:
(i) The price per share at which the shares are to be sold to the Founder
shall be equal to the price per share paid by the purchaser to the Founder in
the Prohibited Transfer.
(ii) Within ninety (90) days after the later of the dates on which the
Stockholder (A) received notice of the Prohibited Transfer or (B) otherwise
become aware of the Prohibited Transfer, each Stockholder shall, if exercising
the option created hereby, deliver to the Founder the certificate or
certificates representing shares to be sold, each certificate to be properly
endorsed for transfer.
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(iii) The Founder shall, upon receipt of the certificate or certificates
for the shares to be sold by a Stockholder, pursuant to this subparagraph 5(b),
pay the aggregate purchase price therefor, in cash or by other means acceptable
to the Stockholder.
(iv) Notwithstanding the foregoing, any attempt by the Founder to transfer
Stock in violation of Section 2 of this Agreement shall be void and the Company
agrees it will not effect such a transfer nor will it treat any alleged
transferee as the holder of such shares without the written consent of a
majority in interest of the Stockholders.
6. Legend.
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(a) Each certificate representing shares of Stock now or hereafter owned by
the Founder or issued to any person in connection with a transfer pursuant to
Section 4(a) hereof shall be endorsed with the following legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN
CO-SALE AND STOCK RESTRICTION AGREEMENT BY AND BETWEEN THE STOCKHOLDER, THE
CORPORATION AND CERTAIN HOLDERS OF STOCK OF THE CORPORATION. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE
CORPORATION."
(b) The Founder agrees that the Company may instruct its transfer agent to
impose transfer restrictions on the shares represented by certificates bearing
the legend referred to in Section 6(a) above to enforce the provisions of this
Agreement and the Company agrees to promptly do so. The legend shall be removed
upon termination of this Agreement.
7. Miscellaneous.
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7.1 Governing Law. This Agreement shall be governed by and construed under
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the laws of the State of New York.
7.2 Amendment. Any provision may be amended and the observance thereof may
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be waived (either generally or in a particular instance and either retroactively
or prospectively), only by the written consent of (i) as to the Company, only by
the Company, (ii) as to the Stockholders, by persons holding more than fifty
percent (50%) in interest of the Common Stock and Preferred Stock held by the
Stockholders and their assignees, pursuant to Section 7.3 hereof, and (iii) as
to the Founder, only by the Founder, provided that any Stockholder may waive any
of his
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rights hereunder without obtaining the consent of any other Stockholder. Any
amendment or waiver effected in accordance with clauses (i), (ii) and (iii) of
this paragraph shall be binding upon each Stockholder, its successors and
assigns, the Company and the Founder.
7.3 Assignment of Rights. This Agreement and the rights and obligations of
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the parties hereunder shall inure to benefit of, and be binding upon, the
parties hereto and their respective successors, assigns and legal
representatives. The rights of the Stockholders hereunder are only assignable
(i) by each of such Stockholders to any other person or entity who, immediately
prior to such transfer, is a Stockholder or (ii) to an assignee or transferee
who acquires the lesser of (a) at least one hundred percent (100%) of the Common
Stock and Preferred Stock held by a Stockholder or (b) 800,000 shares of Common
Stock or Preferred Stock.
7.4 Term. This Co-Sale and Stock Restriction Agreement shall terminate
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upon the earlier of (i) the date two years following the closing of a firmly
underwritten public offering (a "Qualified 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
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), or (ii) 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. If, at any time, any Stockholder sells or contracts to
sell, in one or more transactions, an aggregate of 50% or more of the Stock held
by such Stockholder, this Agreement shall terminate with respect to such
Stockholder upon the consummation of any such sale.
7.5 Ownership. The Founder represents and warrants that he is the sole
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legal and beneficial owner of the shares of stock subject to this Co-Sale and
Stock Restriction Agreement and that no other person has any interest (other
than a community property interest) in such shares.
7.6 Notices. All notices required or permitted hereunder shall be in
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writing and shall be deemed effectively given upon personal delivery to the
party to be notified or five days after deposit in the United States mail, by
registered or certified mall, postage prepaid and properly addressed to the
party to be notified (a) as set forth on Annex A to the Series B Preferred Stock
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Purchase Agreement, dated as
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of November 17, 1995 among the Company and the Stockholders, in the case of the
Stockholders, (b) to the Founder at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, X.X. 00000;
(c) to the Company at 0 Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, attention: Vice
President-Finance; or at such other address as such party may designate by ten
(10) days' advance written notice to the other parties hereto. Notwithstanding
the foregoing, the telephone notice permitted by Section 2(d) shall be effective
at the time it is given.
7.7 Severability. In the event one or more of the provisions of this Co-
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Sale and Stock Restriction Agreement should, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Co-Sale and Stock
Restriction Agreement, and this Co-Sale and Stock Restriction Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.
7.8 Attorney Fees. In the event that any dispute among the parties to this
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Co- Sale and Stock Restriction Agreement should result in litigation, the
prevailing party in such dispute shall be entitled to recover from the closing
party all fees, costs and expenses of enforcing any right of such prevailing
party under or with respect to this Co-Sale and Stock Restriction Agreement,
including without limitation, such reasonable fees and expenses of attorneys and
accountants, which shall include, without limitation, all fees, costs and
expenses of appeals.
7.9 Counterparts. This Co-Sale and Stock Restriction Agreement may be
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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.
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The foregoing agreement is hereby executed as of the date first above
written.
GIGA INFORMATION GROUP, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------
Title _____________________________
Address __________________________
__________________________
__________________________
FOUNDER:
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/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Address ___________________________________
___________________________________
___________________________________
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SIGNATURE PAGE TO THE
CO-SALE AND STOCK RESTRICTION AGREEMENT
THE STOCKHOLDERS:
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Name of Stockholder:
Neill & Xxxxx Xxxxxxxxxx
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By: /s/ Neill X. Xxxxxxxxxx
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Name of Stockholder:
Xxxxxx X. Xxxx
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By: /s/ Xxxxxx X. Xxxx
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Name of Stockholder:
Xxxxxxxxxxx X. XxXxxxxxx
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By: /s/ Xxxxxxxxxxx X. XxXxxxxxx
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Name of Stockholder:
Xxxxxx X. XxXxxx
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By: /s/ Xxxxxx X. XxXxxx
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Name of Stockholder:
Xxxxx Xxxxxxx
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By: /s/ Xxxxx Xxxxxxx
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Name of Stockholder:
Xxxxxxx Technology Partners III
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By: /s/ Xxxxx Xxxxxxx
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Title: General Partner
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Name of Stockholder:
Xxxxxxx X. Xxxxx
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By: /s/ Xxxxxxx X. Xxxxx
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Name of Stockholder:
Gilo Family Partnership
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By: /s/ Xxxxxx Xxxx
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Name of Stockholder:
Xxxxxxx X. Xxxxxxx
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By: /s/ Xxxxxxx X. Xxxxxxx
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2/29/96
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Name of Stockholder:
/s/ Xxxx X. Xxxxxx
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By: Xxxx X. Xxxxxx
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Name of Stockholder:
Xxxxx Xxxxx-xxx Xxxxx
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By: /s/ Xxxxx Xxxxx-xxx Xxxxx
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Name of Stockholder:
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/ Xxxxxx X. Xxxxxx
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Title: Class A Member
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Name of Stockholder:
Xxxxxxxxx X. Xxxx
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By: /s/ Xxxxxxxxx X. Xxxx
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Title: Individual
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Name of Stockholder:
Xxxxxxxxx X. Xxxxx
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By: /s/ Xxxxxxxxx X. Xxxxx
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Title: Sup. Sales
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Name of Stockholder:
Xxxxx Xxxxx Xxxxxxx
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By: /s/ Xxxxx Xxxxx Xxxxxxx
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21st. Century Communications Partners, L.P.
By: Infomedia Associates, Ltd., a General Partner
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Title: Treasurer
21st. Century Communications Foreign Partners, L.P.
By: Infomedia Associates, Ltd., a General Partner
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Title: Treasurer
21st. Century Communications T-E Partners, L.P.
By: Infomedia Associates, Ltd., a General Partner
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Title: Treasurer
Name of Stockholder:
S.G. Partners L.P.
--------------------------------
By: /s/ Xxxxxxx Xxxxxxxxx
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Title:
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Xxxxxxxxx Xxxxxxxx, L.P.
By: /s/ Xxxx Xxxxxx, Its General Partner
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Xxxxxx & XxXxxxx International
By: /s/ X. Xxxxxxxxx McBaine
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Xxx X. Xxxxxx
/s/ Xxxx Xxxxxx
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(Xxx X. Xxxxxx)
X. Xxxxxxxxx XxXxxxx
/s/ X. Xxxxxxxxx XxXxxxx
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(X. Xxxxxxxxx McBaine)
Xxxxx Xxxxx-xxx Xxxxx
/s/ Xxxxx Xxxxx-xxx Xxxxx
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(Xxxxx Xxxxx-xxx Xxxxx)
Haussmann Holdings:
By: /s/ Xxxx Xxxxxxx
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Title: Xxxx Xxxxxxx
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Xxxxxxxxxx Growth Partners, L.P.
By: Xxxxxxxxxx Asset Management, its G.P.
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By: /s/ Xxxx Xxxxxxx
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Title: Principal
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Quota Fund, N.V.
By: /s/ Xxxx Xxxxxxx
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Title: Principal
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Xxxxxxxxxx Small Cap Partners III, L.P.
By: /s/ Xxxxx High , its General Partner
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By: Xxxxx High
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Title: General Partner
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RRE Giga Investors, L.P.
By: RRE Investors L.L.C., its General Partner
By: /s/ Xxxxxx Xxxxxx
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Title: Managing Director
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Kensington Partners L.P.
By: /s/ Xxxxxxx Xxxx, , Its General Partner
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By: Xxxx Xxxx
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Title: G.P.
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Name of Stockholder:
The Matrix Technology Group N.V.
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By: /s/ Xxxxxxx Xxxxxxxxx
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Title: Managing Director
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Name of Stockholder:
Core Technology Fund Inc.
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By: /s/ Xxxxxxx Xxxxxxxxx
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Title: Managing Director
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Name of Stockholder:
Executive Technology L.P.
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By: /s/ Xxxxxxx Xxxxxxxxx
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Title: Pres. of S/2/ Tech which is
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Gen'l Ptr. of Exec. Tech.
Name of Stockholder:
Yale University
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By: /s/ Xxxxxxx Xxxxxxxxx
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Title: President of S/2/ Tech
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Name of Stockholder:
Yale University Retirement Plan for Staff Employees
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By: /s/ Xxxxxxx Xxxxxxxxx
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Title: President of S2 Tech
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Name of Stockholder:
Sci-Tech Investment Partners L.P.
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By: /s/ Xxxxxxx Xxxxxxxxx
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Title: President of S2 Tech
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which is Gen'l Ptr of Sci-Tech
Name of Stockholder:
Montsol Investments N.V.
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By: /s/ Xxxxxxx Xxxxxxxxx
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Title: Managing Director
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Xxxxxxxxxx Small Cap
Partners II, L.P.
By: /s/ Xxxxx High
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Name of Stockholder:
Acorn Fund
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By: /s/ Xxxxx X. Xxxxx
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Title: Treasurer
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Name of Stockholder:
Nosrob Investments Ltd.
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By: /s/ Xxxx Xxxxxxx
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Title: Xxxx Xxxxxxx - Principal
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Name of Stockholder:
Xxxx X. Xxxxxxxxxx
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By: /s/ Xxxx X. Xxxxxxxxxx
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Name of Stockholder:
Xxxx X. Xxxxxxxxxx
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By: /s/ Xxxx X. Xxxxxxxxxx
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Name of Stockholder:
Xxxxx X. Xxxxxxxx
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By: Neill X. Xxxxxxxxxx, Father
Name of Stockholder:
Will X. Xxxxxx
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By: /s/ Will X. Xxxxxx
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