Exhibit (d)(3)
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 XXXXXX X. XXXXXXX ("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 beneficially owns and has the
power to vote and dispose of 1,862,445 shares of Company Common Stock (such
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");
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 Shareholder's spouse, ancestors,
descendants or any trust for any of their benefits or to a charitable trust;
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 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 hereby agrees to vote, 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.
-2-
(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 tender, 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.
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 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.
-3-
(b) Promptly following the date hereof, Shareholder shall
cause 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 whatsoever
(collectively, "Liens"). 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. 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
-4-
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 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 (a) in connection with the transactions
contemplated by the Merger Agreement or this Agreement or (b) otherwise except
for the health benefits described in the second sentence of paragraph 6 of the
letter agreement dated as of December 24, 1998 between Shareholder and the
Company.
3. Representations and Warranties of Parent and Sub. Parent and Sub hereby
represent and warrant to Shareholder, as of the date hereof that:
-5-
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 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
-6-
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.
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 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
-7-
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
(b) If to
Shareholder: __________________________
__________________________
__________________________
Attention: _______________
Telecopy: _______________
with a copy to: __________________________
Attention: _______________
Telecopy: ________________
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
-8-
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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
-9-
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
_________________________
Name: Xxxxxx X. Colony
________________________
Title: Chairman and CEO
_______________________
XXXXXXXX ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
_________________________
Name: Xxxxxxx X. Xxxxxxxx
________________________
Title: President
_______________________
SHAREHOLDER
/s/ Xxxxxx X. Xxxxxxx
______________________________
Name: Xxxxxx X. Xxxxxxx
________________________
