As filed with the Securities and Exchange Commission on June 9, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GIGA INFORMATION GROUP, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 06-1422860
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
ONE LONGWATER CIRCLE
NORWELL, MASSACHUSETTS 02061
(781) 982-9500
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
GIGA INFORMATION GROUP, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plan)
GIDEON I. GARTNER
CHAIRMAN OF THE BOARD, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
GIGA INFORMATION GROUP, INC.
ONE LONGWATER CIRCLE
NORWELL, MASSACHUSETTS 02061
(781) 982-9500
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
GERALD S. BACKMAN, P.C.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Each Class of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee
Share(2) Price(2)
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<S> <C> <C> <C> <C>
Common Stock, par value $.0001 per share 750,000 $ 4.125 $ 3,093,750 $ 860.06
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</TABLE>
(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the Securities
Act of 1933.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457 of the Securities Act of 1933.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1.
The documents containing the information specified in Part I
of this Registration Statement will be sent or given to employees as specified
by Rule 428(b)(1). Such documents are not required to be and are not filed with
the Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended (the "Securities Act").
ITEM 2.
Upon written or oral request, any of the documents
incorporated by reference in Item 3 of Part II of this Registration Statement
(which documents are incorporated by reference in this Section 10(a)
Prospectus), other documents required to be delivered to eligible employees
pursuant to Rule 428(b) or additional information about the Giga Information
Group, Inc. 1999 Employee Stock Purchase Plan are available without charge by
contacting:
Giga Information Group, Inc.
One Longwater Circle
Norwell, Massachusetts 02061
(781) 982-9500
Attention: Eileen Phinney
Senior Treasury Analyst
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Giga
Information Group, Inc. (the "Company" or the "Registrant") are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998.
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1999.
(c) The Company's Reports on Form 8-K dated February 17, 1999,
April 30, 1999 and May 17, 1999.
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the
Commission pursuant to Section 12 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on July 28,
1998, including any amendment or report filed for the purpose
of updating such description.
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Seven of the Registrant's Amended and Restated
Certificate of Incorporation (the "Restated Certificate") provides that no
director of the Registrant shall be personally liable for any monetary damages
for any breach of fiduciary duty as a director, except to the extent that the
Delaware General Corporation Law (the "DGCL") prohibits the elimination or
limitation of liability of directors for breach of fiduciary duty.
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Article Eight of the Restated Certificate provides that a
director or officer of the Registrant (a) shall be indemnified by the Registrant
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement incurred in connection with any litigation or other legal
proceeding (other than an action by or in the right of the Registrant) brought
against him by virtue of his position as a director or officer of the Registrant
if he acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Registrant, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful and (b) shall be indemnified by the Registrant against all expenses
(including attorneys' fees) and amounts paid in settlement incurred in
connection with any action by or in the right of the Registrant brought against
him by virtue of his position as director or officer of the Registrant if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Registrant, except that no indemnification
shall be made with respect to any matter as to which such person shall have been
adjudged to be liable to the Registrant, unless a court determines that, despite
such adjudication but in view of all of the circumstances, he is entitled to
indemnification of such expenses. Notwithstanding the foregoing, to the extent
that a director or officer has been successful, on the merits or otherwise,
including, without limitation, the dismissal of an action without prejudice, he
is required to be indemnified by the Registrant against all expenses (including
attorneys' fees) incurred in connection therewith. Expenses shall be advanced to
a director or officer at his request, provided that he undertakes to repay the
amount advanced if it is ultimately determined that he is not entitled to
indemnification for such expenses.
Indemnification is required to be made unless the Registrant
determines that the applicable standard of conduct required for indemnification
has not been met. In the event of a determination by the Registrant that the
director or officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make a indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant has the
right to participate in such action or assume the defense thereof.
Section 145 of the DGCL provides that a corporation has the
power to indemnify a director, officer, employee or agent of the corporation and
certain other persons serving at the request of the corporation in related
capacities against amounts paid and expenses incurred in connection with an
action or proceeding to which he is or is threatened to be made a party by
reason of such position, if such person shall have acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, in any criminal proceeding, if such person had no
reasonable cause to believe his conduct was unlawful; provided that, in the case
of actions brought by or in the right of the corporation, no indemnification
shall be made with respect to any matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
adjudicating court determines that such indemnification is proper under the
circumstances.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
None
ITEM 8. EXHIBITS.
4(a) - Amended and Restated Certificate of Incorporation filed
with the Secretary of State of the State of Delaware on
August 4, 1998 (incorporated by reference to Exhibit 3.1
of the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 1998).
4(b) - Amended & Restated By-Laws adopted on July 9, 1998 and
effective as of August 4, 1998 (incorporated by
reference to Exhibit 3.6 of Amendment No. 1 to the
Company's Registration Statement on Form S-1 (No.
333-52899), dated as of July 7, 1998).
4(c) - Giga Information Group, Inc. 1999 Employee Stock
Purchase Plan (incorporated by reference to Annex B to
the Company's Proxy Statement for its 1999 Annual
Meeting of Stockholders).
5 - Opinion of Weil, Gotshal & Manges LLP.
23(a) - Consent of PricewaterhouseCoopers LLP.
23(b) - Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5).
24 - Power of Attorney (included as part of the signature
page to this Registration Statement and incorporated
herein by reference).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement;
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof)
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which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective
amendment by the foregoing paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy
5
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as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
6
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of New York, State of New York, on this 9th day of
June, 1999.
GIGA INFORMATION GROUP, INC.
By: /s/ Gideon I. Gartner
---------------------------------------
Name: Gideon I. Gartner
Title: Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints each of Gideon I. Gartner and
Daniel M. Clarke acting individually, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Gideon I. Gartner
- ------------------------------- Chairman of the Board of Directors, June 9, 1999
Gideon I. Gartner President and
Chief Executive Officer
(Principal Executive Officer)
7
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/s/ Daniel M. Clarke
- ------------------------------- Senior Vice President, June 9, 1999
Daniel M. Clarke Chief Financial Officer,
Treasurer and Secretary
(Principal Financial and
Accounting Officer)
/s/ A.G.W. Biddle, III
- ------------------------------- Director June 9, 1999
A.G.W. Biddle, III
/s/ Neill H. Brownstein
- ------------------------------- Director June 9, 1999
Neill H. Brownstein
/s/ Richard L. Crandall
- ------------------------------- Director June 9, 1999
Richard L. Crandall
/s/ David L. Gilmour
- ------------------------------- Director June 9, 1999
David L. Gilmour
/s/ Bernard Goldstein
- ------------------------------- Director June 9, 1999
Bernard Goldstein
</TABLE>
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4(a) - Amended and Restated Certificate of Incorporation filed
with the Secretary of State of the State of Delaware on
August 4, 1998 (incorporated by reference to Exhibit 3.1
of the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 1998).
4(b) - Amended & Restated By-Laws adopted on July 9, 1998 and
effective as of August 4, 1998 (incorporated by
reference to Exhibit 3.6 of Amendment No. 1 to the
Company's Registration Statement on Form S-1 (No.
333-52899), dated as of July 7, 1998).
4(c) - Giga Information Group, Inc. 1999 Employee Stock
Purchase Plan (incorporated by reference to Annex B to
the Company's Proxy Statement for its 1999 Annual
Meeting of Stockholders).
5 - Opinion of Weil, Gotshal & Manges LLP.
23(a) - Consent of PricewaterhouseCoopers LLP.
23(b) - Consent of Weil, Gotshal & Manges LLP (included in
Exhibit 5).
24 - Power of Attorney (included as part of the signature
page to this Registration Statement and incorporated
herein by reference).
Exhibit 5
WEIL, GOTSHAL & MANGES LLP
A LIMITED LIABILITY PARTNERSHIP
INCLUDING PROFESSIONAL CORPORATIONS
767 FIFTH AVENUE
NEW YORK, NY 10153
212-310-8000
(FAX) 212-310-8007
June 9, 1999
Giga Information Group, Inc.
One Longwater Circle
Norwell, Massachusetts 02061
Ladies and Gentlemen:
We have acted as counsel to Giga Information Group, Inc. (the
"Corporation") in connection with the preparation of the Registration Statement
on Form S-8 (the "Registration Statement') filed by the Corporation with the
Securities and Exchange Commission on the date hereof with respect to 750,000
shares of Common Stock, par value $.001 per share (the "Common Stock"), of the
Corporation being registered in connection with the Giga Information Group, Inc.
1999 Employee Stock Purchase Plan ("the "Plan").
In so acting, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of the Registration Statement, the
Plan and such corporate records, agreements, documents and other instruments and
such certificates or comparable documents of public officials and of officers
and representatives of the Corporation, and have made such inquiries of such
officers and representatives, as we have deemed relevant and necessary as a
basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact materiel to this opinion that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Corporation.
Based upon the foregoing, and subject to the qualifications
stated herein, we are of the opinion that the 750,000 shares of Common Stock
being registered pursuant to the Registration Statement have been duly
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<PAGE>
Giga Information Group, Inc.
June 9, 1999
Page 2
authorized and, if when issued and delivered upon receipt by the Corporation of
the required consideration in accordance with the Plan, will be validly issued,
fully paid and non-assessable.
We hereby consent to the filing of a copy of this opinion with
the Securities and Exchange Commission as an exhibit to the Registration
Statement.
The opinions expressed herein are limited to the laws of the
State of New York, the corporate laws of the State of Delaware and the federal
laws of the United States, and we express no opinion as to the effect on the
matters covered by this letter of the laws of any other jurisdiction.
Very truly yours,
/s/ WEIL, GOTSHAL & MANGES LLP
Exhibit 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February 18, 1999
relating to the financial statements and financial statement schedules of Giga
Information Group, Inc, which appears in Giga Information Group, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
June 9, 1999
