UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(AMENDMENT NO. 1)
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXHANGE ACT OF 1934
For the transition period from ___ to ____
Commission file number 0-21529
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
incorporation or organization) Identification No.)
139 Main Street 02142
Cambridge, Massachusetts (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (617) 949-4900
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock; $.001 par value
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirement for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definite proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates of the
registrant as of March 16, 2000 was $47,337,537. This number was calculated by
excluding all shares held by executive officers and directors of the registrant
and each person who owns more than 10% or more of the outstanding Common Stock
without conceding that all such persons are "affiliates" of the registrant for
purposes of the Federal securities laws.
The number of shares outstanding of the registrant's capital stock as of
March 16, 2000 was 10,143,607 shares of Common Stock, par value $.001 per share.
DOCUMENTS INCORPORATED BY REFERENCE
(1) Proxy Statement for the Annual Meeting of Stockholders of the Registrant to
be held on May 25, 2000. Certain information therein is incorporated by
reference into Part III hereof.
47954.0001
<PAGE>
EXPLANATORY NOTE
This Amendment No. 1 on Form 10-K/A to the Annual Report on Form 10-K of Giga
Information Group, Inc., amends and restates in its entirety Item 14 of Part IV
solely to add Exhibit 10.20.
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K.
(a) 1. Financial Statements
The information required by this item appears beginning on
page F-1 of this Annual Report on Form 10-K and is incorporated
herein by reference.
2. Financial Statement Schedule
The Financial Statement schedules required to be filed
hereunder appear on page S-1 hereof.
Other schedules are omitted because of the absence of
conditions under which they are required or because the required
information is given in the consolidated financial statements or
notes thereto.
3. Exhibits
Exhibit
Number Description of Documents
------ ------------------------
3.1 (1) Fifth Amended and Restated Certificate of
Incorporation of the Registrant
3.2 (1) Amended and Restated By-Laws of the Registrant
4 (1) Specimen Certificate for shares of Common Stock,
$.001 par value, of the Registrant
10.1 (1) Registration Rights Agreement dated November 13,
1995, as amended, among the Registrant, the Investors
named on Exhibit A thereto, Gideon I. Gartner and
David L. Gilmour
10.2 (1) Co-Sale and Stock Restriction Agreement dated
November 13, 1995, as amended, among the Registrant,
Gideon I. Gartner and the stockholders named on the
signature pages thereto
10.3 (5) Employment Agreement dated December 24, 1998 between
the Registrant and Gideon I. Gartner
10.4(5) Consulting Agreement dated December 18, 1998 between
the Registrant and Richard L. Crandall
10.5 (1) Consulting Agreement dated February 1, 1998 between
the Registrant and David Gilmour
10.6 (1) Non-competition Agreement dated November 13, 1995
between the Registrant and Gideon I. Gartner
10.7 (1) Lease dated October 31, 1995 between the Registrant
and Cambridge 1400 Limited Partnership, with respect
to the premises at One Kendall Square
10.8 (1) (a) Lease dated October 6, 1987, as amended, between
BIS Strategic Decisions, Inc. and Charles A. Pesko,
Jr. as Trustee of Longwater Circle Trust, with
respect to the premises at One Longwater Circle (b)
Lease dated May 29, 1998, between the Registrant and
Trinet Property Partners, L.P., with respect to the
premises at One Longwater Circle
10.9 (2) 1995 Stock Option/Stock Issuance Plan
2
<PAGE>
Exhibit
Number Description of Documents (continued)
------ ------------------------------------
10.10 (3) 1996 Stock Option Plan
10.11 (4) 1997 Director Option Plan
10.12 (6) Employment Agreement, dated May 13, 1999, between
Giga Information Group, Inc. and Robert K. Weiler
10.13 (12) Letter Agreement effective as of October 26, 1999
between the Registrant and Robert K. Weiler providing
for the deferral of year 2000 compensation
10.14 (7) Giga Information Group, Inc. 1999 Share Incentive
Plan
10.15 (8) Giga Information Group, Inc. 1999 Employee Stock
Purchase Plan
10.16 (9) Lease dated June 18, 1999 between the Registrant and
The Linden Limited Partnership with respect to its
headquarters at 139 Main St., Cambridge,
Massachusetts
10.17 (9) Sublease dated June 28, 1999 between the Registrant
and InCert Software Corporation with respect to the
premises at One Kendall Square, Cambridge,
Massachusetts
10.18 (10) Consulting Agreement dated as of August 23, 1999
between the Registrant and John Landry
10.19 (11) Rights Agreement dated as of February 18, 2000
between Giga Information Group, Inc. and American
Stock Transfer & Trust Co., as Rights Agent. The
Rights Agreement includes as Exhibit B the form of
Right Certificate and as Exhibit C the form of
Certificate of Designations
10.20* Separation Agreement, effective as of August 15, 1999
between the Registrant and James C. R. Graham
11 (12) Statement re computation of earnings per share
21(1) Subsidiaries of the Registrant
23 * Consent of PricewaterhouseCoopers LLP
27 (12) Financial Data Schedule
- --------------------------------------------------------------------------------
* Filed herewith
(1) Incorporated by reference to the Registrant's Registration
Statement on Form S-1 (File No. 333-52899), dated July 28,
1998.
(2) Incorporated by reference to the Registrant's Registration
Statement on Form S-8 (File No. 333-64411), dated
September 28, 1998.
(3) Incorporated by reference to the Registrant's Registration
Statement on Form S-8 (File No. 333-64409), dated
September 28, 1998.
(4) Incorporated by reference to the Registrant's Registration
Statement on Form S-8 (File No. 333-64413), dated
September 28, 1998.
(5) Incorporated by reference to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1998.
(6) Incorporated by reference to the Registrant's Current
Report on Form 8-K, dated May 17, 1999.
(7) Incorporated by reference to Annex A to Giga's Proxy
Statement for its 1999 Annual Meeting of Stockholders,
dated April 12, 1999.
(8) Incorporated by reference to Annex B to Giga's Proxy
Statement for its 1999 Annual Meeting of Stockholders,
dated April 12, 1999.
(9) Incorporated by reference to the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended June 30,
1999.
(10) Incorporated by reference to the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended September
30, 1999.
(11) Incorporated by reference to the Registrant's Current
Report on Form 8-K, dated February 18, 2000.
(12) Incorporated by reference to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1999
3
<PAGE>
(b) Reports on Form 8-K
Giga filed a Current Report on Form 8-K, dated October 29, 1999,
pertaining to a press release announcing Giga's results of operations for the
three and nine months ended September 30, 1999.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized on the 2nd day of May,
2000.
GIGA INFORMATION GROUP, INC.
By: ROBERT K. WEILER
-------------------------------------
Robert K.Weiler
Chairman of the Board of Directors,
President and Chief Executive Officer
5
Exhibit 10.20
AGREEMENT AND RELEASE
This Agreement and Release is made by and between James C. R.
Graham ("You") and Giga Information Group, Inc. ("Giga") or the ("Company"). In
consideration of the mutual obligations and promises contained herein, you and
Giga agree as follows:
1. Title. Effective August 15, 1999, your title will be changed to Research
Fellow.
2. Services. During the period between August 15, 1999 and February 15, 2000:
(a) Giga may call upon you in a special projects capacity ("Services") for
up to 40 business days of Services; (b) You will carry out the 12 CIO
Seminars that have been scheduled by Giga; and (c) Giga may request up to
an additional 20 business days of Services and you will use your best
efforts to provide such Services. The Company shall provide reasonable
notice to you as to any request for Services during this period.
Furthermore, the Company agrees to pay reasonable out-of-pocket expenses
(including travel) incurred by you in performance of Services. However, in
all other respects, you will be entitled to use your time and your home
office to focus on your future career, subject to the limitations in (4)
and (8) below and elsewhere herein.
At your option, after November 30, 1999 and other than the CIO Seminars,
you may stop providing Services to the Company. If you so choose, the
remaining consideration described in (3) (a), (b), and (c) below will not
be paid and the vesting of stock options described in (5) below will end.
3. Consideration: (a) Continuation of base salary at its current level
through February 15, 2000; (b) continuation of insurance benefits (health,
life and disability) at their current levels through February 30, 2000;
(c) continued participation in the Company's 401K plan through February
15, 2000; and (d) $50,000 for carrying out the CIO Seminars. In addition,
You will be paid at the rate of $2,000 per day for the optional 20 days of
Services.
The $50,000 for carrying out the CIO Seminars will be paid as follows: (a)
$15,000 upon execution of this agreement; (b) $17,000 on October 1, 1999;
and (c) $18,000 on November 30, 1999.
4. Job Search. You may continue to use the computer and communications
equipment Giga provided for your home office through the end of your
employment. This equipment will be returned prior to the earlier of ten
(10) days after you stop providing Services or February 30, 2000. Your
access to voicemail will continue, and we will direct your email to your
personal account, so long as your use of these systems does not threaten
Giga's competitive position or put confidential information at risk. Giga
will continue to provide normal administrative support during this period.
<PAGE>
5. Stock Options. Your rights to exercise any vested options under the
Company's 1996 Stock Option Plan (the "Plan") and other applicable plans
will be determined by the applicable provisions of that Plan(s). Vesting
will continue through February 15, 2000. For purposes of determining the
"Exercise Period Upon Termination of Employment" under the Plan, your last
day of employment will be February15, 2000. The 90-day exercise period of
options begins February 15, 2000.
6. Release of Claims: (a) In consideration of Giga's payments and
undertakings contained in this Agreement and Release and except for any
vested interest in the Company's 401(k) Savings and Retirement Plan, and
Stock Option Plans, you hereby release and forever discharge, and covenant
not to sue or commence proceedings against, Giga, its subsidiaries or
affiliates and their respective officers, directors, employees, agents,
successors and assigns ("Releasees"), from and with respect to any and all
claims, debts, demands, damages, actions and causes of action of any kind
whatsoever, based on facts or circumstances of which you have present
knowledge, which you now have, ever had, or may in the future have,
against such Releasees, arising to the date of this Agreement and Release,
including, without limitation, those arising out of or in any manner
relating to your employment by Giga or the termination of such employment,
including, without limitation, any claim for reinstatement, back or future
pay, bonuses, commissions, fringe benefits, medical expenses, attorneys'
fees and expenses, damages or consequential damages, including but not
limited to any claim, complaint, charge or lawsuit under Title VII of the
Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act of 1967, the Equal Pay Act of 1963, the
Employee Retirement Income Security Act of 1974, the Rehabilitation Act of
1973, Executive Order 11246, the Massachusetts Fair Employment Act, the
Massachusetts Civil Rights Act, the Massachusetts Equal Rights Act and any
other state, federal or municipal law statute, public policy, order or
regulation affecting or relating to the claims or rights of employees,
including any and all claims and suits in tort or contract. You hereby
represent and warrant to Giga that you have no present knowledge of any
facts and circumstances that may give rise to a claim against Giga or
other Releasees.
(b) With respect to any rights you may have under the Age Discrimination
in Employment Act of 1967, which rights are being released under this
Agreement and Release, you understand that you have 21 days to consider
this Agreement and Release, which, if you choose to sign this document
before the 21-day period expires, you hereby waive; that for a period of
seven days following your execution of this Agreement and Release you may
revoke it and your release as to such rights; that this Agreement and
Release shall not become effective or enforceable as to the release of
such rights until this seven-day revocation period has expired; and that
Giga has no obligation to pay any sums or provide any benefits referred to
in this Agreement and release, except those to which you are entitled
under existing Giga policy, until it becomes effective or enforceable.
Page 2 of 3
<PAGE>
7. Confidentiality and Non-Disparagement: You and the Company agree to keep
as confidential that the terms of this Agreement and Release, and all
facts and circumstances associated therewith, except that the parties will
develop a mutually acceptable exit statement for internal and external
publication. In addition, you agree that you will not act or assist any
action to diminish or interfere with the Company's relationship with its
employees, clients, or prospective clients, or the Company's goodwill; or
seek to bind the Company in any way during the salary continuation period
or thereafter. Notwithstanding the forgoing, you are permitted to share
the details of this Agreement in confidence with your attorney.
7. Other Agreements Still in Effect. The provisions of all confidentiality,
assignment of invention, and non-compete agreements you signed during the
course of your employment with Giga remain in effect. You agree to comply
with company policies in connection with your employment as described
herein.
Giga understands that You are writing a book with the planned title "How
to Build an Internet Insurance Company." Giga agrees that with regard to
the book, the entire rights, title and interest, including copyright, in
all software, data, methodologies, sketches, drawings, models,
presentations, works of authorship or other creative works, ideas,
knowledge or data, whether written, oral or otherwise expressed,
originated and developed by You is your soles property.
9. Complete Agreement: You acknowledge that you have read and understood this
Agreement and Release and have had the opportunity to seek the advice of
your attorney upon request. This Agreement and Release sets forth the
entire agreement and understanding between you and Giga concerning the
matters specified above (but in no way limits your obligations under any
other agreement between you and the Company). No subsequent modification
of this Agreement shall be effective unless it is in writing and duly
signed by authorized representatives of both parties.
By signing below, each party agrees to the terms of this Agreement and Release.
Once signed, any reproduction of this Agreement and Release made by reliable
means (for example photocopy or facsimile) is considered an original.
AGREED: GIGA INFORMATION GROUP:
By:
- ------------------------------------ ----------------------------------
James C. R. Graham Daniel M. Clarke, SVP and CFO
Date: August 16, 1999
------------------------------
Page 3 of 3
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (Nos. 333-64409, 333-64411 and 333-64413) of Giga
Information Group, Inc. of our report dated February 18, 2000 relating to the
financial statements and financial statement schedules, which appears in this
Form 10-K/A.
PricewaterhouseCoopers LLP
Boston, Massachusetts
May 2, 2000
