Shares QLIK TECHNOLOGIES INC. COMMON STOCK, PAR VALUE $0.0001 PER SHARE UNDERWRITING AGREEMENT
[___________] Shares
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
[__________], 2010
[_____________], 2010
Xxxxxx Xxxxxxx & Co. Incorporated
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
As representatives of the several Underwriters
named in Schedule I hereto
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
As representatives of the several Underwriters
named in Schedule I hereto
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Qlik Technologies Inc., a Delaware corporation (the “Company”), proposes to issue and sell to
the several Underwriters named in Schedule I hereto (the “Underwriters”) [___] shares of
its common stock, par value $0.0001 per share (the “Firm Shares”).
The Company also proposes to issue and sell to the several Underwriters not more than an
additional [___] shares of its common stock, par value $0.0001 per share (the “Additional
Shares”), if and to the extent that Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”), Citigroup
Global Markets Inc. and X.X. Xxxxxx Securities Inc., as managers of the offering (collectively, the
"Representatives”), shall have determined to exercise, on behalf of the Underwriters, the right to
purchase such shares of common stock granted to the Underwriters in Section 2 hereof. The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the “Shares.” The
shares of common stock, par value $0.0001 per share, of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the “Common Stock.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-1 (File No. 333-165844), including a prospectus, relating to the
Shares. The registration statement as amended as of the date and time as of which such
registration statement was declared effective by the Commission (the “Effective Time”), including
the
information (if any) deemed to be part of the registration statement at the Effective Time
pursuant to Rule 430A under the Securities Act of 1933, as amended (the “Securities Act”), is
hereinafter referred to as the “Registration Statement”; the final prospectus as filed with the
Commission pursuant to Rule 424(b) under the Securities Act is hereinafter referred to as the
"Prospectus.” If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the term “Registration Statement” shall be
deemed to include such Rule 462 Registration Statement.
For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule
405 under the Securities Act, “Time of Sale Prospectus” means the preliminary prospectus dated
[___], 2010 together with the free writing prospectuses, if any, each identified in Schedule
II hereto, and “broadly available road show” means a “bona fide electronic road show” as defined in
Rule 433(h)(5) under the Securities Act that has been made available without restriction to any
person. As used herein, the terms “Registration Statement,” “preliminary prospectus,” “Time of
Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference
therein.
Xxxxxx Xxxxxxx has agreed to reserve a portion of the Shares to be purchased by it under this
Agreement for sale to the Company’s directors, officers, employees and business associates and
other parties related to the Company (collectively, “Participants”), as set forth in the Prospectus
under the heading “Underwriters” (the “Directed Share Program”). The Shares to be sold by Xxxxxx
Xxxxxxx and its affiliates pursuant to the Directed Share Program are referred to hereinafter as
the “Directed Shares”. Any Directed Shares not orally confirmed for purchase by any Participant by
[___] [a.]/[p.]m. New York City time on the business day on which this Agreement is executed will
be offered to the public by the Underwriters as set forth in the Prospectus.
1. Representations and Warranties. The Company represents and warrants to and agrees with
each of the Underwriters that:
(a) The Registration Statement has become effective under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or, to the Company’s knowledge, threatened by the Commission.
(b) (i) The Registration Statement at the Effective Time did not contain and, as amended or
supplemented, if applicable, will not as of the Closing Date and applicable Option Closing Date (as
defined in Section 2), if any, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading in the
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light of the circumstances under which they were made, (ii) the Registration Statement at the
Effective Time did comply and, as amended or supplemented, if applicable, on the date the
Prospectus is first filed in accordance with Rule 424(b) under the Securities Act and as of the
Closing Date and applicable Option Closing Date, if any, will comply and the Prospectus does comply
as of its date and, as amended or supplemented, if applicable, will comply as of the Closing Date
and applicable Option Closing Date, if any, in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale
Prospectus did not as of [ ] [a.]/[p.]m. New York City time on the date of this Agreement (the
"Applicable Time”) contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading, (iv) each broadly available road show, if any, when considered together with
the Time of Sale Prospectus, did not as of the Applicable Time contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading and (v) the Prospectus does
not contain as of its date and, as amended or supplemented, if applicable, will not contain as of
the Closing Date and applicable Option Closing Date, if any, any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions in the Registration
Statement, the Time of Sale Prospectus, the Prospectus or broadly available road show based upon
information relating to any Underwriter furnished to the Company in writing by or on behalf of such
Underwriter through the Representatives expressly for use therein.
(c) The Company is not as of the date of this Agreement an “ineligible issuer” in connection
with the offering hereby contemplated pursuant to Rules 164, 405 and 433 under the Securities Act.
Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in accordance with the requirements
of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each
free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or with the Company’s consent on behalf of or used
or referred to by the Company complied as of the first date of use in all material respects with
the requirements of the Securities Act and the applicable rules and regulations of the Commission
thereunder. Except for the free writing prospectuses, if any, identified in Schedule II hereto,
and electronic road shows, if any, each furnished to the Representatives before first use, the
Company has not prepared, used or referred to, and will not prior to the completion of the
distribution of the Shares, without the Representatives’ prior consent, prepare, use or refer to,
any free writing prospectus.
3
(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Delaware, has the corporate power and authority to own its
property and to conduct its business as described in the Time of Sale Prospectus and the Prospectus
and is duly qualified to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good standing would not
reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(e) Each subsidiary of the Company has been duly formed, is validly existing as an entity in
good standing under the laws of the jurisdiction of its formation, to the extent that the concept
of “good standing” is applicable under the laws of such jurisdiction, has the power and authority
to own its property and to conduct its business as described in the Time of Sale Prospectus and the
Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction,
to the extent that the concept of “good standing” is applicable under the laws of such
jurisdiction, in which the conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so qualified or be in good standing
would not reasonably be expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued, are fully paid and non-assessable and are
owned, directly or indirectly, by the Company, free and clear of all liens, encumbrances, equities
or claims, except for such liens, encumbrances, equities or claims as would not, in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms in all material respects as to legal
matters to the description thereof contained in the section entitled “Description of Capital Stock”
in the Time of Sale Prospectus and the Prospectus.
(h) The shares of Common Stock outstanding prior to the issuance of the Shares have been duly
authorized and are validly issued, fully paid and non-assessable.
(i) The Shares have been duly authorized and, when issued and delivered in accordance with the
terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or similar rights.
4
(j) The execution and delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene any provision of (i) applicable law, (ii) the
certificate of incorporation or by-laws of the Company, (iii) any agreement or other instrument
binding upon the Company or any of its subsidiaries that is filed as an exhibit to the Registration
Statement or (iv) any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, except, in the cases of clauses (i), (iii) or (iv)
above for any such contravention that would not reasonably be expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the
Company to perform its obligations under this Agreement or to consummate the transactions
contemplated by the Time of Sale Prospectus and the Prospectus, and no consent, approval,
authorization or order of, or qualification with, any governmental body or agency is required to be
obtained by the Company or any of its subsidiaries for the performance by the Company of its
obligations under this Agreement, except such as (x) has been obtained as of the date hereof or (y)
may be required by applicable state or foreign securities or Blue Sky laws in connection with the
offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus.
(l) There are no legal or governmental proceedings pending or, to the Company’s knowledge,
threatened to which the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject (i) that if determined adversely to
the Company or any of its subsidiaries would reasonably be expected to result in a material adverse
effect on the Company and its subsidiaries, taken as a whole, or on the power or ability of the
Company to perform its obligations under this Agreement or to consummate the transactions
contemplated by the Time of Sale Prospectus and the Prospectus or (ii) that are required to be
described in the Registration Statement or the Prospectus and are not so described; and there are
no statutes, regulations, contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(m) The Company is not, and after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Time of Sale Prospectus and the Prospectus
will not be as of the Closing Date and applicable Option Closing Date, if any, required to register
as an “investment company” as such term is defined in the Investment Company Act of 1940, as
amended.
5
(n) The Company and its subsidiaries (i) are not aware of any issues regarding compliance with
any applicable foreign, federal, state and local laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“Environmental Laws”), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, reasonably be expected to have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(o) There are no costs or liabilities in regards to pending proceedings, or known to be
contemplated against the Company or any of its subsidiaries, associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to third parties) which
would, singly or in the aggregate, reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(p) Except as described in the Time of Sale Prospectus or as otherwise waived in connection
with the issuance and sale of the Shares contemplated hereby, there are no contracts, agreements or
understandings between the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with respect to any securities of
the Company or to require the Company to include such securities with the Shares registered
pursuant to the Registration Statement.
(q) Neither the Company nor any of its subsidiaries or affiliates, nor any director, officer,
or employee on behalf of the Company, nor, to the Company’s knowledge, any agent or representative
of the Company or of any of its subsidiaries or affiliates, has taken any action in furtherance of
an offer, payment, promise to pay, or authorization or approval of the payment or giving of money,
property, gifts or anything else of value, directly or indirectly, to any “government official”
(including any officer or employee of a government or government-owned or controlled entity or of a
public international organization, or any person acting in an official capacity for or on behalf of
any of the foregoing, or any political party or party official or candidate for political office)
to improperly influence official action or secure an improper advantage; and the Company and its
subsidiaries and affiliates have conducted their businesses in compliance with applicable
anti-corruption laws and have instituted and maintained policies and procedures designed to promote
and achieve, and which
6
are reasonably expected to continue to promote and achieve, compliance with such laws and with
the representation and warranty contained herein.
(r) The operations of the Company and its subsidiaries are and have been conducted at all
times in material compliance with all applicable financial recordkeeping and reporting requirements
of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT
Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its
subsidiaries conduct business, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge
of the Company, threatened.
(s) Neither the Company nor any of its subsidiaries (collectively, the “Entity”) or, to the
knowledge of the Company, any director, officer, employee, agent, affiliate or representative of
the Entity, is an individual or entity (“Person”) that is, or is owned or controlled by a Person
that is:
(A) the subject of any sanctions administered or enforced by the U.S.
Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United
Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s
Treasury (“HMT”), or other relevant sanctions authority (collectively,
“Sanctions”), nor
(B) located, organized or resident in a country or territory that is the
subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran,
North Korea, Sudan and Syria).
(ii) The Company represents and covenants that the Entity will not, directly or indirectly,
use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to
any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person
or in any country or territory that, at the time of such funding or facilitation,
is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any
Person (including any Person participating in the offering, whether as
underwriter, advisor, investor or otherwise).
7
(iii) The Company represents and covenants that for the past 5 years, the Entity has not
knowingly engaged in and, is not now knowingly engaged in any dealings or transactions with any
Person, or in any country or territory, that at the time of the dealing or transaction is or was
the subject of Sanctions.
(t) Subsequent to the respective dates as of which financial information is last dated in each
of the Registration Statement at the Effective Time, the Time of Sale Prospectus and the
Prospectus, (i) the Company and its subsidiaries have not incurred any material liability or
obligation, direct or contingent, nor entered into any material transaction; (ii) the Company has
not purchased any of its outstanding capital stock other than from the Company’s or any of its
subsidiaries’ employees, officers, directors, advisors or consultants in connection with the
termination of their service to the Company or any of its subsidiaries, nor declared, paid or
otherwise made any dividend or distribution of any kind on its capital stock other than ordinary
and customary dividends; and (iii) there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its subsidiaries, except in each case as
described in each of the Registration Statement at the Effective Time, the Time of Sale Prospectus
and the Prospectus.
(u) The Company and its subsidiaries have good and marketable title in fee simple to all real
property and good and marketable title to all tangible personal property owned by them which is
material to the business of the Company and its subsidiaries, taken as a whole, in each case free
and clear of all liens, encumbrances and defects of title except such as are described in the Time
of Sale Prospectus and the Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held under lease by the Company
and its subsidiaries are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not materially interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries, in each case except as
described in the Time of Sale Prospectus and the Prospectus.
(v) Except as described in the Time of Sale Prospectus and the Prospectus, the Company and its
subsidiaries own or possess, or can acquire on reasonable terms, ownership of, rights to use or
adequate rights to use all patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade names necessary or
material to conduct their respective businesses in the manner as now conducted as described in the
Time of Sale Prospectus and the Prospectus, and neither the Company nor any of its subsidiaries has
received any written notice of infringement of or conflict with asserted rights of others with
respect to any of the foregoing which, singly or in the aggregate, if the subject of an unfavorable
8
decision, ruling or finding, would reasonably be expected to have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(w) No labor dispute with the employees of the Company or any of its subsidiaries exists,
except as described in the Time of Sale Prospectus and the Prospectus, or, to the knowledge of the
Company, is imminent that could reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole; and the Company has not received any notice of any
existing, threatened or imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that would reasonably be expected to have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(x) The Company and each of its subsidiaries are insured by insurers of appropriately rated
claims paying abilities against such losses and risks and in such amounts as are in the reasonable
opinion of management prudent and customary in the businesses in which they are engaged; neither
the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied
for; and neither the Company nor any of its subsidiaries has any reason to believe that it will not
be able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business at a cost that
would not reasonably be expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, except as described in the Time of Sale Prospectus and the
Prospectus.
(y) The Company and its subsidiaries possess all certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct
their respective businesses in the manner as now conducted as described in the Time of Sale
Prospectus and the Prospectus, except where the failure to obtain such certificate, authorization
or permit would not reasonably be expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and neither the Company nor any of its subsidiaries has received
any notice of proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole, except as described in the Time of Sale Prospectus
and the Prospectus.
(z) The Company and each of its subsidiaries maintain a system of internal accounting controls
(the “Internal Controls”) sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with United
States generally accepted accounting principles and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with
9
management’s general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Internal Controls are, or upon consummation of the offering of
the Shares will be, overseen by the Audit Committee (the “Audit Committee”) of the Company’s Board
of Directors (the “Board”) in accordance with the rules of the NASDAQ Global Market. The Company
has not reported to the Audit Committee or the Board, and within the next 90 days the Company does
not reasonably expect to report to the Audit Committee or the Board, a significant deficiency,
material weakness, change in Internal Controls, any violation of, or failure to comply with, the
Xxxxxxxx-Xxxxx Act of 2002, as amended (“Xxxxxxxx-Xxxxx”), the Securities Act, the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), the rules and regulations of the Commission
under the Securities Act, the auditing principles, rules, standards and practices applicable to
auditors of “issuers” (as defined in Xxxxxxxx-Xxxxx) promulgated or approved by the Public Company
Accounting Oversight Board and, as applicable, the rules of the NASDAQ Global Market.
(aa) Except as described in the Registration Statement, the Company has not sold, issued or
distributed any shares of Common Stock during the six-month period preceding the date hereof,
including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other
than shares issued pursuant to employee benefit plans, qualified stock option plans or other
employee compensation plans or pursuant to outstanding options, rights or warrants.
(bb) The Registration Statement, the Prospectus, the Time of Sale Prospectus and any
preliminary prospectus comply, and any amendments or supplements thereto will comply, with any
applicable laws or regulations of foreign jurisdictions in which the Prospectus, the Time of Sale
Prospectus or any preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program.
(cc) No consent, approval, authorization or order of, or qualification with, any governmental
body or agency, other than those obtained, is required in connection with the offering of the
Directed Shares in any jurisdiction where the Directed Shares are being offered.
(dd) The Company has not offered, or caused Xxxxxx Xxxxxxx to offer, Shares to any person
pursuant to the Directed Share Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer’s or supplier’s level or type of business
with the Company, or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its products.
10
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to
purchase from the Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $[___] a share (the “Purchase Price”).
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to the Underwriters the Additional Shares, and
the Underwriters shall have the right to purchase, severally and not jointly, up to [___]
Additional Shares at the Purchase Price, provided, however, that the amount paid by the
Underwriters for any Additional Shares shall be reduced by an amount per share equal to any
dividends declared by the Company and payable on the Firm Shares but not payable on such Additional
Shares. The Representatives may exercise this right on behalf of the Underwriters in whole or from
time to time in part by giving written notice not later than 30 days after the date of this
Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by
the Underwriters and the date on which such shares are to be purchased. Each purchase date must be
at least one business day after the written notice is given and may not be earlier than the closing
date for the Firm Shares nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 4 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm Shares. On each day, if
any, that Additional Shares are to be purchased (an “Option Closing Date”), each Underwriter
agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such
adjustments to eliminate fractional shares as the Representatives may determine) that bears the
same proportion to the total number of Additional Shares to be purchased on such Option Closing
Date as the number of Firm Shares set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf
of the Underwriters, it will not, during the period beginning on the date of this Agreement and
ending 180 days after the date of the Prospectus, (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of the Common Stock, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or
such other securities, in cash or otherwise or (3) file any registration statement (other than on
Form S-8) with the Commission relating to
11
the offering of any shares of Common Stock or any securities convertible into or exercisable
or exchangeable for Common Stock.
The restrictions contained in the preceding paragraph shall not apply to (a) the Shares to be
sold hereunder, (b) the issuance by the Company of shares of Common Stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date hereof, (c) the grant of
options or the issuance of shares of Common Stock by the Company to employees, officers, directors
or consultants of the Company or its subsidiaries pursuant to equity incentive plans as described
in the Time of Sale Prospectus, provided that, prior to the issuance of any such shares or the
grant of any such options or convertible securities where the shares subject to such option or
convertible security vest within the period ending 180 days after the date of the Prospectus, the
Company shall cause each recipient of such grant or issuance to execute and deliver to the
Representatives a “lock-up” agreement, substantially in the form of Exhibit A hereto, (d)
the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer
of shares of Common Stock, provided that such plan does not provide for the transfer of Common
Stock during the 180-day restricted period and no public announcement or filing under the Exchange
Act regarding the establishment of such plan shall be required of or voluntarily made by or on
behalf of the Company, (e) the issuance by the Company of shares of Common Stock in connection with
any strategic transaction that includes a commercial relationship involving the Company or its
subsidiaries and other entities (including but not limited to joint ventures, marketing or
distribution arrangements, collaboration agreements or intellectual property license agreements) or
(f) the issuance by the Company of shares of Common Stock in connection with any equipment loan or
leasing arrangement, real property leasing arrangement or debt financing from a bank or similar
financial institution; provided, however, that, in the case of issuances pursuant to clauses (e)
and (f), the total aggregate number of shares issued pursuant such clauses shall not exceed five
percent (5%) of the total shares of Common Stock outstanding immediately following the Closing Date
and any recipients of such shares shall execute a lock-up agreement in substantially the form set
forth in Exhibit A hereto. Notwithstanding the foregoing and unless Xxxxxx Xxxxxxx, on
behalf of the Underwriters, waives such extension in writing, if (1) during the last 17 days of the
180-day restricted period the Company issues an earnings release or material news or a material
event relating to the Company occurs; or (2) prior to the expiration of the 180-day restricted
period, the Company announces that it will release earnings results during the 16-day period
beginning on the last day of the 180-day period, the restrictions imposed by this agreement shall
continue to apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event. The Company shall
promptly notify Xxxxxx Xxxxxxx of any earnings release, news or event that may give rise to an
extension of the initial 180-day restricted period.
12
3. Terms of Public Offering. The Company is advised by the Representatives that the
Underwriters propose to make a public offering of their respective portions of the Shares as soon
after the Registration Statement and this Agreement have become effective as in the
Representatives’ judgment is advisable. The Company is further advised by the Representatives that
the Shares are to be offered to the public initially at $[___] a share (the “Public Offering
Price”) and to certain dealers selected by the Representatives at a price that represents a
concession not in excess of $[___] a share under the Public Offering Price, and that any
Underwriter may allow, and such dealers may reallow, a concession, not in excess of $[___] a
share, to any Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the Company in Federal
or other United States funds immediately available in New York City against delivery of such Firm
Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time,
on [___], 2010, or at such other time on the same or such other date, not later than [___],
2010, as shall be agreed in writing by the Representatives and the Company. The time and date of
such payment are hereinafter referred to as the “Closing Date.”
Payment for any Additional Shares shall be made to the Company in Federal or other United
States funds immediately available in New York City against delivery of such Additional Shares for
the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date
specified in the corresponding notice described in Section 2 or at such other time on the same or
on such other date, in any event not later than [___], 2010, as shall be agreed in writing by
the Representatives and the Company.
The Firm Shares and Additional Shares shall be registered in such names and in such
denominations as the Representatives shall request in writing not later than one full business day
prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Firm
Shares and Additional Shares shall be delivered to the Representatives on the Closing Date or an
Option Closing Date, as the case may be, for the respective accounts of the several Underwriters,
with any transfer taxes payable in connection with the transfer of the Shares to the Underwriters
duly paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the
Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for
the Shares on the Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than [___] [a.]/[p.][m.] New York City time on the date hereof.
The several obligations of the Underwriters are subject to the following further conditions:
13
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any of the
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus as of the date of this Agreement that, in the
Representatives’ judgment, is material and adverse and that makes it, in the
Representatives’ judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing
Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i)
above and to the effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon his or her knowledge as to
proceedings threatened.
(c) (i) The Underwriters shall have received on the Closing Date an opinion of Xxxxxxxxx
Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, outside counsel for the Company, dated the
Closing Date, in the form attached hereto as Exhibit B.
(ii) The Underwriters shall have received on the Closing Date an opinion of Advokatfirman
Xxxxx KB, outside counsel for QlikTech International AB, dated the Closing Date, in form attached
hereto as Exhibit C.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx &
Xxxxxxxx LLP, counsel for the Underwriters, dated the Closing Date, in form and substance
satisfactory to the Underwriters.
With respect to the negative assurance letters provided by each of Xxxxxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP and Xxxxx Xxxx & Xxxxxxxx LLP, such counsel may state that
their opinions and beliefs are
14
based upon their participation in the preparation of the Registration Statement, the Time of
Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or verification, except as
specified.
The opinion of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP described in
Section 5(c)(i) above shall be rendered to the Underwriters at the request of the Company and shall
so state therein.
(e) The Underwriters shall have received, on each of the date hereof and the Closing Date, a
letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from Ernst & Young LLP, independent public accountants,
containing statements and information of the type ordinarily included in accountants’ “comfort
letters” to underwriters with respect to the financial statements and certain financial information
contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided
that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than one
business day prior to the date hereof.
(f) The “lock-up” agreements, each substantially in the form of Exhibit A hereto,
between the Representatives and certain stockholders, officers and directors of the Company
relating to sales and certain other dispositions of shares of Common Stock or certain other
securities, delivered to the Representatives on or before the date hereof, shall be in full force
and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to the Representatives on the applicable Option Closing Date of such
documents as the Representatives may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Shares to be sold on such Option
Closing Date and other matters related to the issuance of such Additional Shares.
6. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to the Representatives, without charge, four signed copies of the Registration
Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy
of the Registration Statement (without exhibits thereto) and to furnish to the Representatives in
New York City, without charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in Section 6(e) or 6(f)
below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and
amendments thereto or to the Registration Statement as the Representatives may reasonably request.
15
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus
or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which the Representatives
reasonably object, and to file with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) To furnish to the Representatives a copy of each proposed free writing prospectus to be
prepared by or with the Company’s consent on behalf of, used by, or referred to by the Company and
not to use or refer to any proposed free writing prospectus to which the Representatives reasonably
object.
(d) Not to take any action that would result in an Underwriter or the Company being required
to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not
have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration Statement then on file, or
if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time
of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time
of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of
Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration
Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with
applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the
opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to
in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) is delivered to a purchaser, not misleading, or
16
if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the
Representatives will furnish to the Company) to which Shares may have been sold by the
Representatives on behalf of the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended
or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof
the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws
of such jurisdictions as the Representatives shall reasonably request; provided, however, that
nothing contained herein shall require the Company to qualify to do business in any jurisdiction,
to execute a general consent or process in any state or to subject itself to taxation in any
jurisdiction in which it is otherwise not subject.
(h) To make generally available to the Company’s security holders and to the Representatives
as soon as practicable an earning statement covering a period of at least twelve months beginning
with the first fiscal quarter of the Company occurring after the date of this Agreement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(i) To comply with all applicable securities and other laws, rules and regulations in each
jurisdiction in which the Directed Shares are offered in connection with the Directed Share
Program.
(j) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and expenses of the
Company’s counsel and the Company’s accountants in connection with the registration and delivery of
the Shares under the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, any free writing prospectus prepared by or with the consent of the
Company on behalf of, used by, or referred to by the Company and amendments and supplements to any
of the foregoing, including all printing costs associated therewith, and the mailing and delivering
of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii)
all costs and expenses related to the transfer and delivery of the Shares to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any
Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares
17
under state securities laws and all expenses in connection with the qualification of the
Shares for offer and sale under state securities laws as provided in Section 6(g) hereof, including
filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection
with such qualification and in connection with the Blue Sky or Legal Investment memorandum, which
fees and expenses shall not exceed $5,000 in connection with the Blue Sky or Legal Investment
Memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification of the offering of the Shares
by the Financial Industry Regulatory Authority, Inc., (v) all fees and expenses in connection with
the preparation and filing of the registration statement on Form 8-A relating to the Common Stock
and all costs and expenses incident to listing the Shares on the NASDAQ Global Market, (vi) the
cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer
agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor
presentations on any “road show” undertaken in connection with the marketing of the offering of the
Shares, including, without limitation, expenses associated with the preparation or dissemination of
any electronic road show, expenses associated with the production of road show slides and graphics,
fees and expenses of any consultants engaged in connection with the road show presentations with
the prior approval of the Company, travel and lodging expenses of the representatives and officers
of the Company and any such consultants, and 50% of the cost of any aircraft chartered in
connection with the road show, provided that the prior approval of the Company was obtained prior
to the chartering of any such aircraft, (ix) the document production charges and expenses
associated with printing this Agreement, (x) all fees and disbursements of counsel incurred by the
Underwriters in connection with the Directed Share Program and stamp duties, similar taxes or
duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share
Program and (xi) all other costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution,”
Section 9 entitled “Directed Share Program Indemnification” and the last paragraph of Section 11
below, the Underwriters will pay all of their costs and expenses, including fees and disbursements
of their counsel, stock transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
7. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company thereunder, but for the action of the
Underwriter.
18
8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter, each person, if
any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule
405 under the Securities Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the
Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they were made not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such untrue statement or omission
or alleged untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by or on behalf of such Underwriter through the Representatives
expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, officers, employees and agents, including its officers who sign the
Registration Statement, and each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act,
any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act, or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to such Underwriter
furnished to the Company in writing by or on behalf of such Underwriter through the Representatives
expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus or the Prospectus or any amendment or supplement
thereto.
19
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Sections 8(a) or 8(b),
such person (the “indemnified party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonably incurred fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the reasonably incurred fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (i) the fees and expenses of more than
one separate firm (in addition to any local counsel) for all Underwriters, the directors, officers,
employees and agents of any Underwriter, and all persons, if any, who control any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or
who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act and
(ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for
the Company, its directors, officers, employees and agents, including its officers who sign the
Registration Statement, and each person, if any, who controls the Company within the meaning of
either such Section, and that all such fees and expenses shall be reimbursed as they are incurred.
In the case of any such separate firm for the Underwriters, and such directors, officers,
employees, agents, control persons and affiliates of any Underwriters, such firm shall be
designated in writing by the Representatives. In the case of any such separate firm for the
Company, and such directors, officers, employees, agents and control persons of the Company, such
firm shall be designated in writing by the Company. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason of such settlement
or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying
party of the
20
aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party, unless such
settlement (i) includes an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) To the extent the indemnification provided for in Sections 8(a) or 8(b) is unavailable to
an indemnified party or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the indemnifying party or parties on
the one hand and the indemnified party or parties on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits referred to in clause
8(d)(i) above but also the relative fault of the indemnifying party or parties on the one hand and
of the indemnified party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other hand in connection with the offering of the Shares shall be
deemed to be in the same respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of
the Company on the one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Underwriters’ respective
obligations to contribute pursuant to this Section 8 are several in proportion to the respective
number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable
21
considerations referred to in Section 8(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall
be deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Underwriter, any directors, officers, employees
or agents of any Underwriter, any person controlling any Underwriter, or by or on behalf of the
Company, its officers, directors, employees or agents or any person controlling the Company and
(iii) acceptance of and payment for any of the Shares.
9. Directed Share Program Indemnification. (a) The Company agrees to indemnify and hold
harmless Xxxxxx Xxxxxxx, the directors, officers, employees and agents of Xxxxxx Xxxxxxx, each
person, if any, who controls Xxxxxx Xxxxxxx within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and each affiliate of Xxxxxx Xxxxxxx within the
meaning of Rule 405 of the Securities Act (“Xxxxxx Xxxxxxx Entities”) from and against any and all
losses, claims, damages and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such action or claim) (i)
caused by any untrue statement or alleged untrue statement of a material fact contained in any
material prepared by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein,
when considered in conjunction with the Time of Sale Prospectus and when considered in the light of
the circumstances under which they were made, not misleading; (ii) caused by the failure of any
Participant to pay for and accept delivery of Directed Shares that the Participant agreed to
purchase; or (iii) related to, arising out of, or in connection with the Directed Share Program,
other than losses, claims, damages or liabilities (or
22
expenses relating thereto) that are finally judicially determined to have resulted from the
bad faith or gross negligence of Xxxxxx Xxxxxxx Entities.
(b) In case any proceeding (including any governmental investigation) shall be instituted
involving any Xxxxxx Xxxxxxx Entity in respect of which indemnity may be sought pursuant to Section
9(a), the Xxxxxx Xxxxxxx Entity seeking indemnity, shall promptly notify the Company in writing and
the Company, upon request of the Xxxxxx Xxxxxxx Entity, shall retain counsel reasonably
satisfactory to the Xxxxxx Xxxxxxx Entity to represent the Xxxxxx Xxxxxxx Entity and any others the
Company may designate in such proceeding and shall pay the reasonably incurred fees and
disbursements of such counsel related to such proceeding. In any such proceeding, any Xxxxxx
Xxxxxxx Entity shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Xxxxxx Xxxxxxx Entity unless (i) the Company shall have
agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the Company and the Xxxxxx Xxxxxxx Entity and representation of
both parties by the same counsel would be inappropriate due to actual or potential differing
interests between them. The Company shall not, in respect of the legal expenses of the Xxxxxx
Xxxxxxx Entities in connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Xxxxxx Xxxxxxx Entities. Any such separate firm for the Xxxxxx Xxxxxxx Entities
shall be designated in writing by Xxxxxx Xxxxxxx. The Company shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the Company agrees to indemnify the Xxxxxx
Xxxxxxx Entities from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time a Xxxxxx Xxxxxxx Entity shall have requested
the Company to reimburse it for fees and expenses of counsel as contemplated by the second and
third sentences of this paragraph, the Company agrees that it shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement is entered into more
than 45 days after receipt by the Company of the aforesaid request and (ii) the Company shall not
have reimbursed the Xxxxxx Xxxxxxx Entity in accordance with such request prior to the date of such
settlement. The Company shall not, without the prior written consent of Xxxxxx Xxxxxxx, effect any
settlement of any pending or threatened proceeding in respect of which any Xxxxxx Xxxxxxx Entity is
or could have been a party and indemnity could have been sought hereunder by such Xxxxxx Xxxxxxx
Entity, unless such settlement includes an unconditional release of the Xxxxxx Xxxxxxx Entities
from all liability on claims that are the subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section 9(a) is unavailable to a Xxxxxx
Xxxxxxx Entity or insufficient in respect of any losses, claims, damages or liabilities referred to
therein, then the Company in lieu of indemnifying the Xxxxxx Xxxxxxx Entity thereunder, shall
contribute to the
23
amount paid or payable by the Xxxxxx Xxxxxxx Entity as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Xxxxxx Xxxxxxx Entities on the other hand from the
offering of the Directed Shares or (ii) if the allocation provided by clause 9(c)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 9(c)(i) above but also the relative fault of the Company on the one
hand and of the Xxxxxx Xxxxxxx Entities on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company on the one hand
and the Xxxxxx Xxxxxxx Entities on the other hand in connection with the offering of the Directed
Shares shall be deemed to be in the same respective proportions as the net proceeds from the
offering of the Directed Shares (before deducting expenses) and the total underwriting discounts
and commissions received by the Xxxxxx Xxxxxxx Entities for the Directed Shares, bear to the
aggregate Public Offering Price of the Directed Shares. The relative fault of the Company on the
one hand and the Xxxxxx Xxxxxxx Entities on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or by the Xxxxxx Xxxxxxx Entities and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(d) The Company and the Xxxxxx Xxxxxxx Entities agree that it would not be just or equitable
if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the
Xxxxxx Xxxxxxx Entities were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in Section 9(c).
The amount paid or payable by the Xxxxxx Xxxxxxx Entities as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses reasonably
incurred by the Xxxxxx Xxxxxxx Entities in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, no Xxxxxx Xxxxxxx Entity shall
be required to contribute any amount in excess of the amount by which the total price at which the
Directed Shares distributed to the public were offered to the public exceeds the amount of any
damages that such Xxxxxx Xxxxxxx Entity has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No Xxxxxx Xxxxxxx Entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in equity.
24
(e) The indemnity and contribution provisions contained in this Section 9 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Xxxxxx Xxxxxxx Entity or the Company, its officers,
directors, employees or agents or any person controlling the Company and (iii) acceptance of and
payment for any of the Directed Shares.
10. Termination. The Representatives, on behalf of the Underwriters, may terminate this
Agreement by notice given by the Representatives to the Company, if after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange,
the American Stock Exchange or the NASDAQ Global Market, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in the United States
shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared
by Federal or New York State authorities or (v) there shall have occurred any outbreak or
escalation of hostilities, or any change in financial markets or any calamity or crisis that, in
the Representatives’ judgment, is material and adverse and which, singly or together with any other
event specified in this clause (v), makes it, in the Representatives’ judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the
manner contemplated in the Time of Sale Prospectus or the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite their respective
names in Schedule I bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the Representatives may
specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the number of Shares that any
Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section
11 by an amount in excess of one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Shares to
25
be purchased on such date, and arrangements satisfactory to the Representatives and the
Company for the purchase of such Firm Shares are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Representatives or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus
or in any other documents or arrangements may be effected. If, on an Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate
number of Additional Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Additional Shares to be purchased on such Option Closing Date, the
non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to
purchase the Additional Shares to be sold on such Option Closing Date or (ii) purchase not less
than the number of Additional Shares that such non-defaulting Underwriters would have been
obligated to purchase in the absence of such default. Any action taken under this paragraph shall
not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter
under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the reasonable fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering contemplated hereunder.
12. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Shares, represents the entire agreement between the Company and the
Underwriters, with respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any other person, (ii) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and prior written agreements (to the extent not superseded
by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by
26
applicable law any claims it may have against the Underwriters arising from an alleged breach
of fiduciary duty in connection with the offering of the Shares.
13. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
14. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
16. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to the Representatives in care of
Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity
Syndicate Desk, with a copy to the Legal Department, Citigroup Global Markets Inc. General Counsel
(fax no.: (000) 000-0000), with a confirmation to the General Counsel, Citigroup Global Markets
Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, X.X. Xxxxxx
Securities Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk
(fax no.: (000) 000-0000) and with a copy to Xxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxxx, Xx.; if to the Company shall be delivered,
mailed or sent to Qlik Technologies Inc., 000 Xxxxxx Xxxxxxx Xxxx, Xxxxx X000, Xxxxxx, Xxxxxxxxxxxx
00000, Attention: Chief Financial Officer with a copy to Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx
Xxxxxxxx & Xxxxxxxxx, LLP, 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxx.
27
Very truly yours, QLIK TECHNOLOGIES INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
[Signature Page to Underwriting Agreement]
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
CITIGROUP GLOBAL MARKETS INC.
X.X. XXXXXX SECURITIES INC.
CITIGROUP GLOBAL MARKETS INC.
X.X. XXXXXX SECURITIES INC.
Acting severally on behalf of themselves and
the several Underwriters named in
Schedule I hereto
the several Underwriters named in
Schedule I hereto
By:
|
Xxxxxx Xxxxxxx & Co. Incorporated | |||
By: |
||||
Name: | ||||
Title: | ||||
By:
|
Citigroup Global Markets Inc. | |||
By: |
||||
Name: | ||||
Title: | ||||
By:
|
X.X. Xxxxxx Securities Inc. | |||
By: |
||||
Name: | ||||
Title: |
[Signature Page to Underwriting Agreement]
SCHEDULE I
Number of Firm Shares | ||||
Underwriter | To Be Purchased | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
[ ] | |||
Citigroup Global Markets Inc. |
[ ] | |||
X.X. Xxxxxx Securities Inc. |
[ ] | |||
Xxxxxxxxx & Company, Inc. |
[ ] | |||
Xxxxxx Xxxxxx Partners LLC |
[ ] | |||
Total: |
[ ] | |||
I-1
SCHEDULE II
Time of Sale Prospectus
1. | Preliminary Prospectus issued [date] | |
2. | [all free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act] | |
3. | [free writing prospectus containing a description of terms that does not reflect final terms, if the Time of Sale Prospectus does not include a final term sheet] | |
4. | [pricing information to be included on Schedule II if a final term sheet is not used] |
II-1
EXHIBIT A
[FORM OF LOCK-UP LETTER]
_______________, 2010
Xxxxxx Xxxxxxx & Co. Incorporated
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
Citigroup Global Markets Inc.
X.X. Xxxxxx Securities Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”),
Citigroup Global Markets Inc. and X.X. Xxxxxx Securities Inc. (the “Representatives”) propose to
enter into an Underwriting Agreement (the “Underwriting Agreement”) with Qlik Technologies Inc., a
Delaware corporation (the “Company”), providing for the public offering (the “Public Offering”) by
the several Underwriters, including the Representatives (the “Underwriters”), of shares (the
“Shares”) of the common stock, par value $0.0001 per share, of the Company (the “Common Stock”).
To induce the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned hereby agrees that, without the
prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 180 days after the date of the final prospectus
relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (2) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to sales of securities pursuant to the
Underwriting Agreement or to (a) transactions relating to shares of Common Stock or other
securities acquired in open market transactions after the completion of the Public Offering,
provided that no filing under Section 16(a) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) (other than a filing on a Form 5, Schedule 13D or Schedule 13G (or 13D/A or 13G/A)
made after the expiration of the restricted period referred to in the foregoing sentence), shall be
required or shall be voluntarily made in connection with subsequent sales of Common Stock or other
securities acquired in such open market transactions, (b) transfers of shares of Common Stock or
any security convertible into Common Stock as a bona fide gift, (c) distributions of shares of
Common Stock or any security convertible into Common Stock to partners, members or stockholders of
the undersigned; provided that in the case of any transfer or distribution pursuant to clause (b)
or (c), (i) each donee or distributee shall sign and deliver a lock-up letter substantially in the
form of this letter and (ii) no filing under Section 16(a) of the Exchange Act, reporting a
reduction in beneficial ownership of shares of Common Stock, shall be required or shall be
voluntarily made during the restricted period referred to in the foregoing sentence (other than a
filing on a Form 5, Schedule 13D or Schedule 13G (or 13D/A or 13G/A) made after the expiration of
the restricted period referred to in the foregoing sentence), (d) transfers of shares of Common
Stock or any security convertible into Common Stock to (i) a spouse, parent, child or grandchild of
the undersigned (a “Relation”), (ii) a trust, the only beneficiaries of which are the undersigned
and/or one or more of its Relations, (iii) a corporation or other entity of which the undersigned
and/or its Relations are at all times the direct or indirect legal and beneficial owners of all of
the outstanding equity securities or similar interests of such corporation or other entity or (iv)
a partnership, the partners of which are exclusively the undersigned and/or its Relations; provided
that in the case of any transfer pursuant to this clause (d), (1) each transferee shall sign and
deliver a lock-up letter substantially in the form of this letter and (2) no filing under Section
16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock,
shall be required or shall be voluntarily made during the restricted period referred to in the
foregoing sentence (other than a filing on a Form 5, Schedule 13D or Schedule 13G (or 13D/A or
13G/A) made after the expiration of the restricted period referred to in the foregoing sentence),
(e) the receipt by the undersigned from the Company of shares of Common Stock upon the exercise of
an option or warrant or in connection with the vesting of restricted stock or restricted stock
units, or the disposition of shares of Common Stock to the Company in a transaction exempt from
Section 16(b) of the Exchange Act solely in connection with the payment of taxes due, provided that
no filing under
A-2
Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of
Common Stock, shall be required or shall be voluntarily made during the restricted period referred
to in the foregoing sentence (other than a filing on a Form 5, Schedule 13D or Schedule 13G (or
13D/A or 13G/A) made after the expiration of the restricted period referred to in the foregoing
sentence), (f) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act
for the transfer of shares of Common Stock, provided that such plan does not provide for the
transfer of Common Stock during the restricted period and no public announcement or filing under
the Exchange Act regarding the establishment of such plan shall be required of or voluntarily made
by or on behalf of the undersigned or the Company or (g) the exercise of options to acquire Common
Stock or the conversion of any security convertible into Common Stock, provided that any shares of
Common Stock received upon such exercise or conversion shall be subject to this agreement and
provided further that no filing under Section 16(a) of the Exchange Act, reporting a reduction in
beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made
during the restricted period referred to in the foregoing sentence (other than a filing on a Form
5, Schedule 13D or Schedule 13G (or 13D/A or 13G/A) made after the expiration of the restricted
period referred to in the foregoing sentence). In addition, the undersigned agrees that, without
the prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 180 days after the date of the Prospectus, make any
demand for or exercise any right with respect to, the registration of any shares of Common Stock or
any security convertible into or exercisable or exchangeable for Common Stock. The undersigned
also agrees and consents to the entry of stop transfer instructions with the Company’s transfer
agent and registrar against the transfer of the undersigned’s shares of Common Stock except in
compliance with the foregoing restrictions.
If:
(1) during the last 17 days of the restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the restricted
period;
the restrictions imposed by this agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the occurrence of the material
news or material event.
The undersigned shall not engage in any transaction that may be restricted by this agreement
during the 34-day period beginning on the last day of the initial
A-3
restricted period unless the undersigned requests and receives prior written confirmation from
the Company or Xxxxxx Xxxxxxx that the restrictions imposed by this agreement have expired.
The undersigned understands that the Company and the Underwriters are relying upon this
agreement in proceeding toward consummation of the Public Offering. The undersigned further
understands that this agreement is irrevocable and shall be binding upon the undersigned’s heirs,
legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of factors, including
market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement,
the terms of which are subject to negotiation between the Company and the Underwriters.
The undersigned understands that if (i) the Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to payment for and
delivery of the Common Stock proposed for sale thereunder, (ii) the Company notifies Xxxxxx Xxxxxxx
in writing that it does not intend to proceed with the Public Offering, or (iii) the initial
closing of the Public Offering does not occur on or prior to December 31, 2010, the undersigned
shall be released from all obligations under this agreement.
This agreement shall be governed by, and construed in accordance with, the laws of the State
of New York.
[Remainder of page intentionally left blank]
A-4
Very truly yours, | ||
(Name of Stockholder — Please Print) | ||
(Signature) | ||
(Name of Signatory if Stockholder is an entity—Please Print) | ||
(Title of Signatory if Stockholder is an entity—Please Print) |
Address: | ||||