exv10w35






Exhibit 10.35




QLIK TECHNOLOGIES INC.



SERIES A PREFERRED


STOCK PURCHASE AGREEMENT




NOVEMBER 17, 2004



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	1. Purchase and Sale of Stock 


	 	 	1	 
	1.1 Sale and Issuance of Series A Preferred Stock 


	 	 	1	 
	1.2 Closing 


	 	 	1	 
	 
	 	 	 	 
	2. Representations and Warranties of the Company
and the Subsidiary 


	 	 	1	 
	2.1 Organization, Good Standing and Qualification 


	 	 	2	 
	 2.2 Capitalization and Voting Rights of the Company 


	 	 	2	 
	2.3 Capitalization and Voting Rights of the Subsidiary 


	 	 	4	 
	2.4 Subsidiaries 


	 	 	4	 
	2.5 Authorization 


	 	 	4	 
	 2.6 Valid Issuance of Preferred and Common Stock 


	 	 	5	 
	 2.7 Governmental Consents 


	 	 	5	 
	 2.8 Offering 


	 	 	5	 
	 2.9 Litigation 


	 	 	5	 
	 2.10 Proprietary Information Agreements 


	 	 	6	 
	2.11 Patents and Trademarks 


	 	 	6	 
	2.12 Compliance with Other Instruments 


	 	 	7	 
	2.13 Agreements; Action 


	 	 	7	 
	2.14 Related-Party Transactions 


	 	 	8	 
	2.15 Permits 


	 	 	9	 
	2.16 Environmental and Safety Laws 


	 	 	9	 
	2.17 Manufacturing, Marketing and Development Rights 


	 	 	9	 
	 2.18 Disclosure 


	 	 	9	 
	2.19 Registration Rights 


	 	 	9	 
	2.20 Corporate Documents 


	 	 	9	 
	 2.21 Title to Property and Assets 


	 	 	10	 
	 2.22 Financial Statements 


	 	 	10	 
	2.23 Changes 


	 	 	10	 
	2.24 Employee Benefit Plans 


	 	 	12	 
	2.25 Tax Returns, Payments and Elections 


	 	 	12	 
	2.26 Insurance 


	 	 	12	 
	2.27 Labor Agreements and Actions; Employee Compensation 


	 	 	12	 
	2.28 Section 83(b) Elections 


	 	 	13	 
	2.29 Real Property Holding Company 


	 	 	13	 
	2.30 Significant Customers and Suppliers 


	 	 	13	 
	2.31 Qualified Small Business Stock 


	 	 	13	 
	2.32 Material Liabilities 


	 	 	14	 
	 
	 	 	 	 
	3. Representations and Warranties of the Investors 


	 	 	14	 
	3.1 Authorization 


	 	 	14	 
	 3.2 Purchase Entirely for Own Account 


	 	 	14	 
	3.3 Disclosure of Information 


	 	 	14	 
	3.4 Investment Experience 


	 	 	14	 






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	 	 	Page
	3.5 Accredited Investor 

	 	 	15	 
	3.6 Restricted Securities 

	 	 	15	 
	3.7 Further Limitations on Disposition
	 	 	15	 
	 3.8 Legends 

	 	 	16	 
	3.9 Exculpation Among Investors

	 	 	16	 
	3.10 Further Representations by Foreign Investors 

	 	 	16	 
	 
	 	 	 	 
	4. Conditions of Investors’ Obligations at Closing

	 	 	16	 
	4.1 Representations and Warranties

	 	 	16	 
	4.2 Performance 

	 	 	16	 
	4.3 Compliance Certificate

	 	 	17	 
	4.4 Qualifications

	 	 	17	 
	4.5 Proceedings and Documents

	 	 	17	 
	4.6 Secretary’s Certificate 

	 	 	17	 
	4.7 Proprietary Information and Employee
Stock Purchase Agreements

	 	 	17	 
	4.8 Bylaws 

	 	 	17	 
	4.9 Board of Directors 

	 	 	17	 
	4.10 Opinion of Company Counsel 

	 	 	17	 
	4.11 Investors’ Rights Agreement 

	 	 	17	 
	4.12 First Refusal and Co-Sale Agreement 

	 	 	18	 
	4.13 Voting Agreement 

	 	 	18	 
	4.14 Management Rights Letter

	 	 	18	 
	4.15 Secondary Purchase 

	 	 	18	 
	4.16 Stock Option Plan 

	 	 	18	 
	4.17 Stock Option Grant 

	 	 	18	 
	4.18 Company Certificate 

	 	 	18	 
	 
	 	 	 	 
	5. Conditions of the Company’s Obligations at Closing

	 	 	18	 
	5.1 Representations and Warranties 

	 	 	18	 
	5.2 Payment of Purchase Price 

	 	 	18	 
	5.3 Qualifications 

	 	 	18	 
	 
	 	 	 	 
	6. Miscellaneous

	 	 	19	 
	6.1 Survival of Warranties 

	 	 	19	 
	6.2 Successors and Assigns

	 	 	19	 
	6.3 Governing Law

	 	 	19	 
	6.4 Counterparts 

	 	 	19	 
	6.5 Titles and Subtitles 

	 	 	19	 
	6.6 Notices 

	 	 	19	 
	6.7 Finder’s Fee 

	 	 	19	 
	6.8 Expenses 

	 	 	20	 
	6.9 Amendments and Waivers 

	 	 	20	 
	6.10 Severability 

	 	 	20	 
	6.12 Aggregation of Stock 

	 	 	21	 
	6.13 Entire Agreement 

	 	 	21	 






ii









 






	 	 	 
	SCHEDULE A

	 	Schedule of Investors
	 
	 	 
	EXHIBIT A

	 	Restated Certificate of Incorporation
	EXHIBIT B

	 	List of Stockholders
	EXHIBIT C

	 	Investors’ Rights Agreement
	EXHIBIT D

	 	First Refusal and Co-Sale Agreement
	EXHIBIT E

	 	Voting Agreement
	EXHIBIT F

	 	Opinion of United States Counsel for the Company
	EXHIBIT H

	 	Forms of Management Rights Letter
	EXHIBIT I

	 	Form of Stock Purchase Agreement






iii









 






QLIK TECHNOLOGIES INC.




SERIES A PREFERRED STOCK PURCHASE AGREEMENT




          THIS STOCK PURCHASE AGREEMENT (the “Agreement”) is made as of the 17th
day of November, 2004, by and among Qlik Technologies Inc., a Delaware corporation (the
“Company”), QlikTech International AB, a company organized under the laws of Sweden (the
“Subsidiary”), and the investors listed on Schedule A hereto, each of which is
herein referred to as an “Investor.”




          THE PARTIES HEREBY AGREE AS FOLLOWS:




          1. Purchase and Sale of Stock.




          1.1 Sale and Issuance of Series A Preferred Stock.




               (a) The Company shall adopt and file with the Secretary of State of Delaware on or before the
Closing (as defined below) the Restated Certificate of Incorporation in the form attached hereto as
Exhibit A (the “Restated Certificate”).



               (b) On or prior to the Closing (as defined below), the Company shall have authorized (i) the
sale and issuance to the Investors of shares of its Series A Preferred Stock (the “Shares”)
and (ii) the issuance of the shares of Common Stock to be issued upon conversion of the Shares (the
“Conversion Shares”). The Shares and the Conversion Shares shall have the rights,
preferences, privileges and restrictions set forth in the Restated Certificate.



               (c) Subject to the terms and conditions of this Agreement, each Investor agrees, severally and
not jointly, to purchase at the Closing and the Company agrees to sell and issue to each Investor
at the Closing, that number of Shares set forth opposite such Investor’s name on Schedule A
hereto for $0.6298 per share (the “Series A Purchase Price”).



          1.2 Closing. The purchase and sale of the Shares shall take place at the offices of
Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP (“Gunderson Dettmer”), 610
Lincoln Street, Waltham, Massachusetts, at 10:00 A.M. (local time), on November ___, 2004, or at
such other time and place as the Company and Investors acquiring in the aggregate at least sixty
percent (60%) of the Shares sold pursuant to this Agreement agree upon orally or in writing (which
time and place are designated as the “Closing”). At the Closing, the Company shall deliver
to each Investor a certificate representing the Shares that such Investor is purchasing against
payment of the purchase price therefor by wire transfer of immediately available funds to an
account designated by the Company.




          2. Representations and Warranties of the Company and the Subsidiary. The Company and
the Subsidiary, solely in regards to the Subsidiary to the extent permitted by Swedish Law, hereby
represent and warrant to each Investor that, except as set forth on a Schedule of Exceptions (the
“Schedule of Exceptions”) furnished each Investor, specifically






 









 







identifying the relevant Section hereof, which exceptions shall be deemed to be
representations and warranties as if made hereunder:




          2.1 Organization, Good Standing and Qualification.




               (a) The Company is a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all requisite corporate power and authority to carry on
its business as now conducted and as currently proposed to be conducted. The Subsidiary is a
company duly incorporated and in good standing under the laws of Sweden and has all requisite
corporate power and authority to carry on its business as now conducted and as currently proposed
to be conducted. Each of the Company and the Subsidiary is duly qualified to transact business and
is in good standing in each jurisdiction in which the failure to so qualify would have a material
adverse effect on the business or properties of the Company on a consolidated basis.



               (b) The sale to the Company of all securities of the Subsidiary outstanding prior to the
Closing (the “Stock Sale”) was duly authorized by all necessary corporate action of each of
the Company and the Subsidiary, is effective and was duly and validly consummated in compliance
with all applicable agreements, instruments, laws and regulations, including, without limitation,
all foreign and United States federal and state securities and corporate laws. The assets,
financial condition, prospects and business of the Company, on a consolidated basis, following the
Stock Sale are substantially identical to the assets, financial condition, prospects and business
of the Subsidiary immediately prior to the Stock Sale.



          2.2 Capitalization and Voting Rights of the Company. The authorized capital of the
Company consists of:




               (a) Preferred Stock. Forty-Six Million Seven Hundred Twenty-One Thousand Four Hundred
Twenty-Four (46,721,424)shares of Preferred Stock, par value $0.0001 (the “Preferred
Stock”), of which Twenty-Six Million Eight Hundred Seventy-Five Thousand One Hundred Forty-Five
(26,875,145) shares have been designated Series AA Preferred Stock (the “Series AA Preferred
Stock”), all of which are issued and outstanding, and Nineteen Million Eight Hundred Forty-Six
Thousand Two Hundred Seventy-Nine (19,846,279) shares have been designated Series A Preferred Stock
(the “Series A Preferred Stock”), all of which will be sold pursuant to this Agreement.
The rights, privileges and preferences of the Preferred Stock will be as stated in the Company’s
Restated Certificate.



               (b) Common Stock. Seventy-Five Million Eight Thousand Nine Hundred Fifty-Five
(75,008,955) shares of common stock, par value $0.0001 (“Common Stock”), of which Seventy
Million Four Hundred Ninety-Three Thousand Nine Hundred Fifty-Five (70,493,955) shares have been
designated Series A Common Stock (the “Series A Common Stock”), of which Seven Million
Eight Hundred Seventy-Nine Thousand Six Hundred Thirty-One (7,879,631) shares are issued and
outstanding, and Four Million Five Hundred Fifteen Thousand (4,515,000) shares have been designated
Series B Common Stock (the “Series B Common Stock”), all of which are issued and
outstanding. The rights, privileges, and preferences of the Common Stock will be as stated in the
Company’s Restated Certificate.



2









 





               (c) The outstanding shares of Common Stock and Preferred Stock are owned by the stockholders
and in the numbers specified in Exhibit B hereto.



               (d) The outstanding shares of Common Stock and Preferred Stock are all duly and validly
authorized and issued, fully paid and nonassessable, and were issued in accordance with the
registration or qualification provisions of the Securities Act of 1933, as amended (the
“Act”), and any relevant state securities laws, or pursuant to valid exemptions therefrom.



               (e) Except for (i) the conversion privileges of the Series AA Preferred Stock, (ii) the
conversion privileges of the Series B Common Stock, (iii) the conversion privileges of the Shares
to be issued under this Agreement, (iv) the rights provided in Section 2.4 of that certain
Investors’ Rights Agreement in the form attached hereto as Exhibit C (the “Investors’
Rights Agreement), and (v) currently outstanding options to purchase One Million Four Hundred
Twelve Thousand (1,412,000) shares of Series A Common Stock granted to employees and other service
providers pursuant to the Company’s Omnibus Stock Option and Award Plan (the “Option
Plan”), there are not outstanding any options, warrants, rights (including conversion or
preemptive rights) or agreements for the purchase or acquisition from the Company of any shares of
its capital stock. In addition to the aforementioned options, the Company has reserved an
additional Nine Million Seven Hundred Twelve Thousand Four Hundred (9,712,400) shares of its Series
A Common Stock for purchase upon exercise of options to be granted in the future under the Option
Plan. Except as set forth in the Restated Certificate and except for that certain Voting Agreement
in the form attached herewith, the Company is not a party or subject to any agreement or
understanding, and, to the Company’s knowledge, there is no agreement or understanding between any
persons and/or entities, which affects or relates to the voting or giving of written consents with
respect to any security or by a director of the Company.



               (f) All outstanding securities of the Company, including, without limitation, all outstanding
shares of the capital stock of the Company, all shares of the capital stock of the Company issuable
upon the conversion or exercise of all convertible or exercisable securities and all other
securities that the Company is obligated to issue, are subject to a one hundred eighty (180) day
“market stand-off” restriction upon an initial public offering of the Company’s securities pursuant
to a registration statement filed with the Securities and Exchange Commission (“SEC”)
pursuant to the Act in a form substantially identical to Section 1.13 of the Investors’ Rights
Agreement.



               (g) The Schedule of Exceptions sets forth a complete list of each security of the Company
owned by any officer, director or, in the Company’s reasonable belief, key employee of the Company,
or by any affiliate or any member of the immediate family of any such individual, together with a
description of the material terms of the vesting provisions and, to the Company’s knowledge, the
rights of first refusal and rights of repurchase applicable to each such security. Except as set
forth in the Schedule of Exceptions, no stock plan, stock purchase, stock option or other agreement
or understanding between the Company and any holder of any securities or rights exercisable or
convertible for securities provides for acceleration or other changes in the vesting provisions or
other terms of such agreement or understanding as the result of the occurrence of any event.



3









 





          2.3 Capitalization and Voting Rights of the Subsidiary.




               (a) The authorized capital of the Subsidiary consists of: Thirty Four Million Seven Hundred
Fifty-Four Thousand Seven Hundred Seventy-Six (34,754,776) common shares, nominal value SEK 0.10
per share (the “Common Shares”), all of which are issued and held of record by the Company.
The rights and privileges of the Common Shares are as stated in the Subsidiary’s Articles of
Association.



               (b) The Subsidiary is wholly owned by the Company. The Company is the sole legal and
beneficial owner of the entire issued share capital of the Subsidiary, there being no other share
or loan capital in the Subsidiary or any share or loan capital under option (actual, contingent or
otherwise) to purchase or subscribe.



               (c) The issued Common Shares are all duly and validly authorized and issued and fully paid,
and were issued in accordance with all applicable securities laws, rules and regulations, or
pursuant to valid exemptions therefrom.



               (d) Except for the Voting Agreement, the Subsidiary is not a party or subject to any agreement
or understanding, and, to the Company’s knowledge, there is no agreement or understanding between
any persons and/or entities, which affects or relates to the voting or giving of written consents
with respect to any security or by a director of the Subsidiary.



          2.4 Subsidiaries. Other than: (a) the Subsidiary, (b) QlikTech Inc., QlikTech GmbH,
and QlikTech Sverige AB, the Company does not presently own or control, directly or indirectly, any
interest in any other corporation, association, or other business entity. Neither the Company nor
the Subsidiary is a participant in any joint venture, partnership, or similar arrangement.




          2.5 Authorization. All corporate action on the part of the Company and, as
applicable, the Subsidiary and their respective officers, directors and stockholders necessary for
the authorization, execution and delivery of this Agreement, the Investors’ Rights Agreement, the
Voting Agreement, and that certain First Refusal and Co-Sale Agreement in the form attached hereto
as Exhibit D (the “First Refusal and Co-Sale Agreement,” and together with the
Investors’ Rights Agreement and the Voting Agreement, the “Ancillary Agreements”), the
performance of all obligations of the Company and, as applicable, the Subsidiary hereunder and
thereunder, and the authorization, issuance (or reservation for issuance), sale and delivery of the
Shares being sold hereunder and the Conversion Shares has been taken or will be taken prior to the
Closing, and this Agreement and the Ancillary Agreements constitute valid and legally binding
obligations of the Company and the Subsidiary, enforceable in accordance with their respective
terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors’ rights generally, (b) as
limited by laws relating to the availability of specific performance, injunctive relief, or other
equitable remedies, and (c) to the extent the indemnification provisions contained in the
Investors’ Rights Agreement may be limited by applicable foreign or United States federal or state
securities laws.







4









 








          2.6 Valid Issuance of Preferred and Common Stock. The Shares being purchased by the
Investors hereunder, when issued, sold and delivered in accordance with the terms of this Agreement
for the consideration expressed herein, will be duly and validly issued, fully paid, and
nonassessable, and will be free of restrictions on transfer other than restrictions on transfer
under this Agreement and the Ancillary Agreements and under applicable United States federal and
state securities laws. The Conversion Shares have been duly and validly reserved for issuance and,
upon issuance in accordance with the terms of the Restated Certificate, will be duly and validly
issued, fully paid, and nonassessable and will be free of restrictions on transfer other than
restrictions on transfer under this Agreement and the Ancillary Agreements and under applicable
United States federal and state securities laws.




          2.7 Governmental Consents. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any foreign or United States
federal, state or local governmental authority on the part of the Company or the Subsidiary is
required in connection with the consummation of the transactions contemplated by this Agreement,
except (a) the filing of the Restated Certificate with the Secretary of State of Delaware; (b) the
filing pursuant to the Regulation D, promulgated by the SEC under the Act, which filing will be
effected within fifteen (15) days of the sale of the Shares hereunder, (c) the filings required by
applicable state “blue sky” securities laws, rules and regulations, or (d) such other post-closing
filings as may be required.




          2.8 Offering. Subject in part to the truth and accuracy of each Investor’s
representations set forth in Section 3 of this Agreement, the offer, sale and issuance of the
Shares as contemplated by this Agreement are exempt from the registration requirements of any
applicable United States federal and state securities laws, and neither the Company nor any
authorized agent acting on its behalf will take any action hereafter that would cause the loss of
such exemption.




          2.9 Litigation. There is no action, suit, proceeding or investigation pending or, to
the Company’s or Subsidiary’s knowledge currently threatened against the Company or the Subsidiary
that questions the validity of this Agreement or any Ancillary Agreement, or the right of the
Company or the Subsidiary to enter into such agreements, or to consummate the transactions
contemplated hereby or thereby, or that is reasonably likely to result, either individually or in
the aggregate, in any material adverse changes in the assets, condition, prospects or affairs of
the Company, financially or otherwise, on a consolidated basis, or any change in the current equity
ownership of the Company or the Subsidiary, nor to the knowledge of the Company or the Subsidiary
is there any basis for the foregoing. The foregoing includes, without limitation, actions, suits,
proceedings or investigations pending or threatened (or any basis therefor known to the Company)
involving the prior employment of any of the Company’s or the Subsidiary’s employees, their use in
connection with the Company’s or the Subsidiary’s business of any information or techniques
allegedly proprietary to any of their former employers, or their obligations under any agreements
with prior employers. Neither the Company nor the Subsidiary is a party or subject to the
provisions of any order, writ, injunction, judgment or decree of any court or government agency or
instrumentality. There is no action, suit, proceeding or investigation by the Company or the
Subsidiary currently pending or that the Company or the Subsidiary presently intends to initiate.







5









 








          2.10 Proprietary Information Agreements. Except as set forth in the Schedule of
Exceptions, each present and former employee and officer of the Company, the Subsidiary and
QlikTech Inc. has executed a proprietary information and inventions agreement, and each consultant
to the Company and the Subsidiary has executed a consulting agreement in substantially the forms
provided to special counsel for the Investors. Neither the Company, the Subsidiary, nor QlikTech
Inc. has any knowledge that any of the Company’s or Subsidiary’s present and former employees,
officers or consultants are in violation thereof, and the Company and the Subsidiary will use its
commercially reasonable efforts to prevent any such violation.




          2.11 Patents and Trademarks. The Company, on a consolidated basis, has sufficient
title and ownership of, or exclusive licenses to, all patents, trademarks, service marks, trade
names, domain names, copyrights, trade secrets, information, proprietary rights and processes
necessary for its business as now conducted and as currently proposed to be conducted without any
violation or infringement of, or other conflict with, the rights of others, except for such items
as have yet to be conceived or developed or that are expected to be available for licensing on
reasonable terms from third parties. The Schedule of Exceptions contains a complete list of
patents and pending patent applications and registrations and applications for trademarks,
copyrights and domain names of, or exclusively licensed to, the Company or the Subsidiary. There
are no outstanding options, licenses, agreements, claims, encumbrances or shared ownership of
interests of any kind relating to anything referred to above in this Section 2.11 that is to any
extent owned by or exclusively licensed to the Company or the Subsidiary, nor is the Company or the
Subsidiary bound by or a party to any options, licenses or agreements of any kind with respect to
the patents, trademarks, service marks, trade names, domain names, copyrights, trade secrets,
licenses, information, proprietary rights and/or processes of any other person or entity, except,
in either case, for standard end-user, object code, internal-use software license and
support/maintenance agreements. Neither the Company nor the Subsidiary has received any
communications alleging that the Company or the Subsidiary has violated or, by conducting the
Company’s or the Subsidiary’s business as currently proposed, would violate any of the patents,
trademarks, service marks, trade names, copyrights or trade secrets or other proprietary rights of
any other person or entity, and neither the Company nor the Subsidiary has any knowledge of any
potential basis for such an allegation or of any reason to believe that such an allegation is
reasonably likely to be forthcoming. To the best of the Company’s or Subsidiary’s knowledge, none
of the Company’s or the Subsidiary’s employees is obligated under any contract (including licenses,
covenants or commitments of any nature) or other agreement, or subject to any judgment, decree or
order of any court or administrative agency, that would interfere with the use of his or her best
efforts to promote the interests of the Company or the Subsidiary or that would conflict with the
Company’s or the Subsidiary’s business (on a consolidated basis) as presently conducted or as
presently proposed to be conducted. Neither the execution nor delivery of this Agreement or the
Ancillary Agreements, nor the carrying on of the Company’s or the Subsidiary’s business by the
employees of the Company or the Subsidiary, nor the conduct of the Company’s or the Subsidiary’s
business as currently proposed, will, to the Company’s or Subsidiary’s knowledge, conflict with or
result in a breach of the terms, conditions or provisions of, or constitute a default under, any
contract, covenant or instrument under which any of such employees is now obligated. It is not and
it will not be necessary to utilize any inventions of any of the Company’s or the Subsidiary’s
employees (or people the Company or the Subsidiary currently intends to hire) made prior to or
outside the scope of their employment by the Company or the Subsidiary. Neither the Company






6









 







nor the Subsidiary has used (other than standard end-user, object code, internal-use software
licenses), modified or distributed any materials incorporating any third party intellectual
property or other proprietary rights (including without limitation, any “freeware” or software
obtained pursuant to any open source, community source, copyleft or similar license arrangement).
Other than pursuant to the provisions of software escrow agreements entered into by the Subsidiary
with its strategic partners and resellers (true and correct copies of which have been provided to
counsel to the Investors), the Company’s business (on a consolidated basis) as currently conducted
and as currently proposed to be conducted does not and will not result in any requirement that the
Company or the Subsidiary publish, disclose or otherwise make available any source code for its (or
any of its respective licensors’) respective proprietary software, libraries, firmware or other
computer programs.




          2.12 Compliance with Other Instruments. The Company is not in violation or default of
any provision of its Restated Certificate or Bylaws, or in any material respect of any instrument,
judgment, order, writ, decree or contract to which it is a party or by which it is bound, or, to
its knowledge, of any provision of any United States federal, state or local or foreign statute,
rule or regulation applicable to the Company (on a consolidated basis). The Subsidiary is not in
violation or default of any provision of its Articles of Association, or in any material respect of
any instrument, judgment, order, writ, decree or contract to which it is a party or by which it is
bound, or, to its knowledge, of any provision of any United States federal, state or local or
foreign statute, rule or regulation applicable to the Subsidiary. The execution, delivery and
performance of this Agreement and the Ancillary Agreements, and the consummation of the
transactions contemplated hereby and thereby will not result in any such violation or default or be
in conflict with or constitute, with or without the passage of time and giving of notice, either a
default under any such provision, instrument, judgment, order, writ, decree or contract or an event
that results in the creation of any lien, charge or encumbrance upon any assets of the Company or
the Subsidiary or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material
permit, license, authorization, or approval applicable to the Company or the Subsidiary, their
respective business or operations or any of their respective assets or properties.




          2.13 Agreements; Action.




               (a) Except as set forth in the Schedule of Exceptions and except for agreements expressly
referenced herein, explicitly contemplated hereby and by the Ancillary Agreements, there are no
agreements, understandings or proposed transactions between the Company or the Subsidiary on the
one hand, and any of the officers, directors, affiliates, or any affiliate of either the Company or
the Subsidiary, on the other.



               (b) Except as set forth in the Schedule of Exceptions, there are no agreements,
understandings, instruments, contracts, proposed transactions, judgments, orders, writs or decrees
to which the Company or the Subsidiary is a party or by which such party is bound that may involve
(i) obligations (contingent or otherwise) of, or payments to such party in excess of, $10,000, or
(ii) any material license of any patent, copyright, trade secret or other proprietary right to, or
from the Company or the Subsidiary (other than (A) the license of the Company’s or the Subsidiary’s
software and products in object code form in the ordinary course of business pursuant to standard
end-user agreements the form of which has been provided to



7









 




special counsel for the Investors or (B) the license to the Company or the Subsidiary of
standard, generally commercially available, “off-the-shelf” third party products that are not and
will not to any extent be part of, or influence development of, or require payment with respect to,
any product, service or intellectual property offering of the Company or the Subsidiary), or (iii)
provisions materially restricting or affecting the development, manufacture or distribution of the
Company’s or the Subsidiary’s products or services, or (iv) indemnification by the Company or the
Subsidiary with respect to infringements of proprietary rights.




               (c) Except as set forth in the Schedule of Exceptions, neither the Company nor the Subsidiary
has (i) declared or paid any dividends or authorized or made any distribution upon or with respect
to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or
any other liabilities individually in excess of $10,000 or, in the case of indebtedness and/or
liabilities individually less than $10,000, in excess of $20,000 in the aggregate, (iii) made any
loans or advances to any person, other than ordinary advances for travel expenses, or (iv) sold,
exchanged or otherwise disposed of any of its assets or rights, other than the sale of its
inventory in the ordinary course of business.



               (d) For the purposes of subsections (b) and (c) above, all indebtedness, liabilities,
agreements, understandings, instruments, contracts and proposed transactions involving the same
person or entity (including persons or entities the Company has reason to believe are affiliated
therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of
such subsections.



               (e) Except in connection with the transactions described herein, neither the Company nor the
Subsidiary has engaged in the past three (3) months in any discussion (i) with any representative
of any corporation or corporations regarding the consolidation or merger of the Company or the
Subsidiary with or into any such corporation or corporations, (ii) with any corporation,
partnership, association or other business entity or any individual regarding the sale, conveyance
or disposition of all or substantially all of the assets of the Company or the Subsidiary or a
transaction or series of related transactions in which more than fifty percent (50%) of the voting
power of the Company or the Subsidiary is disposed of, or (iii) regarding any other form of
acquisition, liquidation, dissolution or winding up of the Company or the Subsidiary.



          2.14 Related-Party Transactions. No employee, officer, or director of the Company or
the Subsidiary (a “Related Party”) or member of such Related Party’s immediate family, or
any corporation, partnership, limited liability company or other entity in which such Related Party
is an officer, director, partner or member, or in which such Related Party has significant
ownership interests or otherwise controls, is indebted to the Company or the Subsidiary, nor is the
Company or the Subsidiary indebted (or committed to make loans or extend or guarantee credit) to
any of them. To the best of the Company’s or Subsidiary’s knowledge, none of such persons has any
direct or indirect ownership interest in any firm or corporation with which the Company or the
Subsidiary is affiliated or with which the Company or the Subsidiary has a business relationship,
or any firm or corporation that competes with the Company or the Subsidiary, except that employees,
officers, or directors of the Company or the Subsidiary and members of such Related Party’s
immediate families may own stock in publicly traded companies that may compete with the Company or
the Subsidiary. Except for (i)






8









 







contracts relating to a Related Party’s employment with, or engagement as a consult to, the
Company or the Subsidiary, (ii) contracts relating to a Related Party’s ownership of securities of
the Company, or (iii) indemnification agreements between a Related Party and the Company or the
Subsidiary, no Related Party or member of their immediate family is directly or indirectly
interested in any material contract with the Company or the Subsidiary.




          2.15 Permits. Each of the Company and the Subsidiary has all franchises, permits,
licenses, and any similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the business, properties,
prospects or financial condition of the Company on a consolidated basis, and the Company believes
that the Company and the Subsidiary can obtain, without undue burden or expense, any similar
authority for the conduct of the business of the Company and the Subsidiary as presently planned to
be conducted. Neither the Company nor the Subsidiary is in default in any material respect under
any of such franchises, permits, licenses, or other similar authority.




          2.16 Environmental and Safety Laws. Neither the Company nor the Subsidiary is in
violation of any applicable statute, law or regulation relating to the environment or occupational
health and safety, and to the Company’s and Subsidiary’s knowledge no material expenditures are or
will be required in order to comply with any such existing statute, law or regulation.




          2.17 Manufacturing, Marketing and Development Rights. Neither the Company nor the
Subsidiary has granted rights to manufacture, produce, assemble, license, market, or sell its
products to any other person and is not bound by any agreement that affects the Company’s or the
Subsidiary’s exclusive right to develop, manufacture, assemble, distribute, market or sell their
respective products, other than rights to market, bundle, sublicense and distribute the Company’s
or the Subsidiary’s software and products in object code form in the ordinary course of business
pursuant to standard reseller, sales representative and strategic partnership agreements, true and
correct forms of which have been provided to special counsel for the Investors.




          2.18 Disclosure. The Company and the Subsidiary has fully provided each Investor with
all the information that such Investor has requested for deciding whether to purchase the Shares.
No certificates made or delivered in connection with this Agreement or the Ancillary Agreements
contain any untrue statement of a material fact or omits to state a material fact necessary to make
the statements herein or therein not misleading.




          2.19 Registration Rights. Except as provided in the Investors’ Rights Agreement,
neither the Company nor the Subsidiary has granted or agreed to grant any registration rights,
including piggyback rights, to any person or entity.




          2.20 Corporate Documents. Except for amendments necessary to satisfy the
representations, warranties or conditions contained in this Agreement (the form of which amendments
has been approved by the Investors), the Restated Certificate and Bylaws of the Company and the
Articles of Association of the Subsidiary are in the form previously provided to special counsel
for the Investors.







9









 








          2.21 Title to Property and Assets. Except as set forth in the Schedule of Exceptions,
each of the Company and the Subsidiary owns its property and assets free and clear of all
mortgages, liens, loans and encumbrances, except such encumbrances and liens that arise in the
ordinary course of business and do not materially impair the Company’s or the Subsidiary’s
ownership or use of such property or assets. With respect to the property and assets it leases,
each of the Company and the Subsidiary is in compliance with such leases and holds a valid
leasehold interest free of any liens, claims or encumbrances.




          2.22 Financial Statements. The Subsidiary has delivered to each Investor its
consolidated audited financial statements (balance sheet and income and cash flow statements,
including notes thereto) at December 31, 2003 and for the fiscal year then ended, and its
consolidated unaudited financial statements (balance sheet and income statement) as at and for the
seven (7)-month period ended July 31, 2004 (the “Financial Statements”). The Financial
Statements have been prepared in accordance with International Accounting Standards Committee
standards (“IAS”) applied on a consistent basis throughout the periods indicated and with
each other, except that the unaudited Financial Statements may not contain all footnotes required
by IAS. The Financial Statements fairly present the financial condition and operating results of
the Subsidiary as of the dates, and for the periods, indicated therein, subject in the case of the
unaudited Financial Statements to normal year-end audit adjustments. Except as set forth in the
Financial Statements, the Subsidiary has no material liabilities, contingent or otherwise, other
than (a) liabilities incurred in the ordinary course of business subsequent to July 31, 2004 (the
“Financial Statement Date”) and (b) obligations under contracts and commitments incurred in
the ordinary course of business and not required under IAS to be reflected in the Financial
Statements, which, in both cases, individually or in the aggregate, are not material to the
financial condition or operating results of the Subsidiary on a consolidated basis. Except as
disclosed in the Financial Statements, the Subsidiary is not a guarantor or indemnitor of any
indebtedness of any other person, firm or corporation. The Subsidiary maintains and will continue
to maintain a standard system of accounting established and administered in accordance with IAS.




          2.23 Changes. Since the Financial Statement Date, there has not been:




               (a) any change in the assets, liabilities, financial condition or operating results of the
Company or the Subsidiary from that reflected in the Financial Statements, except changes in the
ordinary course of business that have not been, in the aggregate, materially adverse;



               (b) any damage, destruction or loss, whether or not covered by insurance, materially and
adversely affecting the assets, properties, financial condition, operating results, prospects or
business of the Company or the Subsidiary (as such business is presently conducted and as it is
presently proposed to be conducted);



               (c) any waiver by the Company or the Subsidiary of a material right or of a material debt owed
to it;



               (d) any satisfaction or discharge of any lien, claim or encumbrance or payment of any
obligation by the Company or the Subsidiary, except in the ordinary course of



10









 




business and that is not material to the assets, properties, financial condition, operating
results or business of the Company or the Subsidiary (as such business is presently conducted and
as it is presently proposed to be conducted);




               (e) any material change or amendment to a material contract or arrangement by which the
Company or the Subsidiary or any of their respective assets or properties are bound or subject;



               (f) any material change in any compensation arrangement or agreement with any employee,
officer, director or stockholder of the Company or the Subsidiary;



               (g) any sale, assignment or transfer of any patents, trademarks, copyrights, trade secrets or
other intangible assets of the Company or the Subsidiary;



               (h) any resignation or termination of employment of any key officer of the Company or the
Subsidiary; and the Company and the Subsidiary, to the best of its respective knowledge, does not
know of the impending resignation or termination of employment of any such officer or key employee;



               (i) receipt of notice that there has been a loss of, or material order cancellation by, any
major customer material to the business of the Company or the Subsidiary;



               (j) any mortgage, pledge, transfer of a security interest in, or lien, created by the Company
or the Subsidiary, with respect to any of its material properties or assets, except liens for taxes
not yet due or payable and liens that arise in the ordinary course of business and do not
materially impair the Company’s or the Subsidiary’s ownership or use of such property or assets;



               (k) any loans or guarantees made by the Company or the Subsidiary to or for the benefit of
their respective employees, officers or directors, or any members of their immediate families,
other than travel advances and other advances made in the ordinary course of its business;



               (l) any declaration, setting aside or payment or other distribution in respect of any of the
Company’s or the Subsidiary’s capital stock, or any direct or indirect redemption, purchase or
other acquisition of any of such stock by the Company or the Subsidiary;



               (m) to the Company’s and the Subsidiary’s knowledge, any other event or condition of any
character that is reasonably likely to materially and adversely affect the assets, properties,
financial condition, operating results or business of the Company, on a consolidated basis (as such
business is presently conducted and as it is presently proposed to be conducted); or



               (n) any agreement or commitment by the Company or the Subsidiary to do any of the things
described in this Section 2.23.



11









 





          2.24 Employee Benefit Plans. Except for the Option Plan, the Company has no Employee
Benefit Plan as defined in the Employee Retirement Income Security Act of 1974. The Subsidiary has
no pension commitments in relation to current or former employees that are not properly safeguarded
by means of adequate and continuous payments of either social security charges or insurance
premiums due in connection with the Subsidiary’s Occupational Pension Plan.




          2.25 Tax Returns, Payments and Elections. Each of the Company and the Subsidiary has
filed all tax returns and reports (including information returns and reports) as required by law.
These returns and reports are true and correct in all material respects except to the extent that a
reserve has been reflected on the Financial Statements in accordance with IAS. Each of the Company
and the Subsidiary has paid all taxes and other assessments due, except those contested by it in
good faith that are listed in the Schedule of Exceptions and except to the extent that a reserve
has been reflected on the Financial Statements in accordance with IAS. The provision for taxes of
the Company and the Subsidiary as shown in the Financial Statements is adequate for taxes due or
accrued as of the date thereof. Neither the Company nor the Subsidiary has elected pursuant to the
Internal Revenue Code of 1986, as amended (the “Code”), to be treated as a Subchapter S
corporation or a collapsible corporation pursuant to Section 1362(a) or Section 341(f) of the Code,
nor has the Company or the Subsidiary made any other elections pursuant to the Code (other than
elections that relate solely to methods of accounting, depreciation or amortization) that would
have a material effect on the Company, its financial condition, its business (on a consolidated
basis) as presently conducted or presently proposed to be conducted or any of its properties or
material assets. Neither the Company nor the Subsidiary has had any tax deficiency proposed or
assessed against it and has not executed any waiver of any statute of limitations on the assessment
or collection of any tax or governmental charge. None of the Company’s or the Subsidiary’s tax
returns has ever been audited by governmental authorities. Since the Financial Statement Date,
neither the Company nor the Subsidiary has incurred any taxes, assessments or governmental charges
other than in the ordinary course of business and the Company and the Subsidiary each have made
adequate provisions on their respective books of account for all taxes, assessments and
governmental charges with respect to its consolidated business, properties and operations for such
period. Each of the Company and the Subsidiary has withheld or collected from each payment made to
each of their respective employees, the amount of all taxes (including, but not limited to, United
States federal income taxes, Federal Insurance Contribution Act taxes and Federal Unemployment Tax
Act taxes) required to be withheld or collected therefrom, and has paid the same to the proper tax
receiving officers or authorized depositories.




          2.26 Insurance. Each of the Company and the Subsidiary has in full force and effect
fire and casualty insurance policies, with extended coverage, sufficient in amount (subject to
reasonable deductibles) to allow it to replace any of its properties that might be damaged or
destroyed.




          2.27 Labor Agreements and Actions; Employee Compensation. Except as set forth in the
Schedule of Exceptions, neither the Company nor the Subsidiary is bound by or subject to (and none
of its assets or properties is bound by or subject to) any written or oral, express or implied,
contract, commitment or arrangement with any labor union, and no labor union has requested or, to
the Company’s knowledge, has sought to represent any of the






12









 







employees, representatives or agents of the Company or the Subsidiary. Except as set forth in
the Schedule of Exceptions, there is no strike or other labor dispute involving the Company or the
Subsidiary pending, or to the Company’s or Subsidiary’s knowledge, threatened, that could have a
material adverse effect on the assets, properties, financial condition, operating results, or
business of the Company on a consolidated basis (as such business is presently conducted and as it
is presently proposed to be conducted), nor does the Company or the Subsidiary have any knowledge
of any labor organization activity involving the Company’s or the Subsidiary’s employees. Neither
the Company nor the Subsidiary has any knowledge that any officer or key employee, or that any
group of key employees, intends to terminate their employment with the Company or the Subsidiary,
nor does the Company or the Subsidiary have a present intention to terminate the employment of any
of the foregoing. Except as set forth in the Schedule of Exceptions, and except as required by
applicable law, the employment of each officer and employee of the Company or the Subsidiary is
terminable at the will of the Company or the Subsidiary, respectively. To the knowledge of the
Company and the Subsidiary, each of the Company and the Subsidiary has complied in all material
respects with all applicable foreign, United States state and federal equal employment opportunity
and other laws related to employment. Except as set forth in the Schedule of Exceptions, neither
the Company nor the Subsidiary is a party to or bound by any currently effective employment
contract, deferred compensation agreement, bonus plan, incentive plan, profit sharing plan,
retirement agreement, or other employee compensation agreement.




          2.28 Section 83(b) Elections. To the Company’s knowledge, all individuals who have
purchased unvested shares of the Company’s Common Stock have timely filed elections under Section
83(b) of the Code and any analogous provisions of applicable state tax laws.




          2.29 Real Property Holding Company. Neither the Company nor the Subsidiary is
currently, and neither has been during the prior five (5) years, a United States real property
holding corporation within the meaning of Section 897 of the Code and the Company and the
Subsidiary each have filed with the Internal Revenue Service all statements, if any, with its
United States income tax returns which are required under Section 1.897-2(h) of the Treasury
Regulations.




          2.30 Significant Customers and Suppliers. No customer or supplier that was material
to the business of the Company or the Subsidiary during the period covered by the Financial
Statements, or that has been material to the business of the Company or the Subsidiary thereafter,
has terminated, materially reduced or threatened to terminate or materially reduce its purchases
from or provision of products or services to the Company or the Subsidiary, as the case may be.




          2.31 Qualified Small Business Stock. As of the Closing: (a) the Company will be an
eligible corporation as defined in Section 1202(e)(4) of the Code, (b) the Company will not have
made any purchases of its own stock during the one-year period preceding the Closing having an
aggregate value exceeding five percent (5%) of the aggregate value of all its stock as of the
beginning of such period and (c) the Company’s aggregate gross assets, as defined by Code Section
1202(d)(2), at no time between its incorporation and through the Closing have exceeded or will
exceed $50 million, taking into account the assets of any corporations required






13









 







to be aggregated with the Company in accordance with Code Section 1202(d)(3);
provided, however, that in no event shall the Company be liable to the Investors
for any damages arising from any subsequently proven or identified error in the Company’s
determination with respect to the applicability or interpretation of Section 1202 unless such
determination shall have been given by the Company in a manner either negligent or fraudulent.




          2.32 Material Liabilities..The Company has no liability or obligation, absolute or
contingent (individually or in the aggregate), except (a) obligations and liabilities incurred
after the date of incorporation in the ordinary course of business that are not material,
individually or in the aggregate, and (b) obligations under contracts made in the ordinary course
of business that would not be required to be reflected in financial statements prepared in
accordance with IAS.




          3. Representations and Warranties of the Investors. Each Investor, severally and not
jointly, hereby represents and warrants to the Company that:




          3.1 Authorization. Such Investor has full power and authority to enter into this
Agreement and the Ancillary Agreements, and each such Agreement constitutes its valid and legally
binding obligation, enforceable in accordance with its terms except (a) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting
enforcement of creditors’ rights generally, (b) as limited by laws relating to the availability of
specific performance, injunctive relief, or other equitable remedies, and (c) to the extent the
indemnification provisions contained in the Investors’ Rights Agreement may be limited by
applicable United States federal or state securities laws.




          3.2 Purchase Entirely for Own Account. This Agreement is made with such Investor in
reliance upon such Investor’s representation to the Company, which by such Investor’s execution of
this Agreement such Investor hereby confirms, that the Shares to be received by such Investor and
the Conversion Shares (collectively, the “Securities”) will be acquired for investment for
such Investor’s own account, not as a nominee or agent, and not with a view to the distribution of
any part thereof, and that such Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this Agreement, such Investor
further represents that such Investor does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such person or to any
third person, with respect to any of the Securities.




          3.3 Disclosure of Information. Such Investor believes it has received all the
information it considers necessary or appropriate for deciding whether to purchase the Shares.
Such Investor further represents that it has had an opportunity to ask questions and receive
answers from the Company and the Subsidiary regarding the terms and conditions of the offering of
the Shares and the business, properties, prospects and financial condition of the Company and the
Subsidiary. The foregoing, however, does not limit or modify the representations and warranties of
the Company and the Subsidiary in Section 2 of this Agreement or the right of the Investors to rely
thereon.




          3.4 Investment Experience. Such Investor is an investor in securities of companies in
the development stage and acknowledges that it is able to fend for itself, can bear






14









 







the economic risk of its investment, and has such knowledge and experience in financial or
business matters that it is capable of evaluating the merits and risks of the investment in the
Shares. If other than an individual, Investor also represents it has not been organized for the
purpose of acquiring the Shares.




          3.5 Accredited Investor. Such Investor is an “accredited investor” within the meaning
of SEC Rule 501 of Regulation D, as presently in effect.




          3.6 Restricted Securities. Such Investor understands that the Securities will be
characterized as “restricted securities” under the United States federal securities laws inasmuch
as they are being acquired from the Company in a transaction not involving a public offering and
that under such laws and applicable regulations such securities may be resold without registration
under the Act, only in certain limited circumstances. In this connection, such Investor represents
that it is familiar with SEC Rule 144, as presently in effect, and understands the resale
limitations imposed thereby and by the Act.




          3.7 Further Limitations on Disposition. Without in any way limiting the
representations set forth above, such Investor further agrees not to make any disposition of all or
any portion of the Securities unless and until:




               (a) There is then in effect a Registration Statement under the Act covering such proposed
disposition and such disposition is made in accordance with such Registration Statement; or



               (b) (i) Such Investor shall have notified the Company of the proposed disposition and shall
have furnished the Company with a detailed statement of the circumstances surrounding the proposed
disposition, and (ii) if reasonably requested by the Company, such Investor shall have furnished
the Company with an opinion of counsel, reasonably satisfactory to the Company that such
disposition will not require registration of such shares under the Act. It is agreed that the
Company will not require opinions of counsel for transactions made pursuant to Rule 144 except in
unusual circumstances.



               (c) Notwithstanding the provisions of subsections (a) and (b) above, no such registration
statement or opinion of counsel shall be necessary for a transfer (i) by an Investor that is a
partnership to a partner of such partnership or a retired partner of such partnership who retires
after the date hereof or to the estate of any such partner of retired partner or the transfer by
gift, will or intestate succession of any partner to his or her spouse or to the siblings, lineal
descendants or ancestors of such partner or his or her spouse, (ii) by an Investor that is a
limited liability company to a member of such limited liability company or a retired member of such
limited liability company who retires after the date hereof or to the estate of any such member of
retired member or the transfer by gift, will or intestate succession of any member to his or her
spouse or to the siblings, lineal descendants or ancestors of such member or his or her spouse, or
(iii) by an Investor to an affiliate or related individual or to the estate of any such affiliate
or related individual or the transfer by gift, will or intestate succession of any affiliate or
related individual to his or her spouse or to the siblings, lineal descendants or ancestors of such
affiliate or related individual or his or her spouse; provided, however, in any such event,
the Investor shall give the Company ten (10) days prior notice of such transfer and



15









 




the prospective transferee agrees in all such instances in writing to be subject to the terms
hereof to the same extent as if he, she or it were an original Investor hereunder.




          3.8 Legends. It is understood that the certificates evidencing the Securities may
bear one or all of the following legends:




               (a) “These securities have not been registered under the Securities Act of 1933, as amended.
They may not be sold, offered for sale, pledged or hypothecated in the absence of a registration
statement in effect with respect to the securities under such Act or an opinion of counsel
satisfactory to the Company that such registration is not required or unless sold pursuant to Rule
144 of such Act.”



               (b) Any legend required by applicable state “blue sky” securities laws, rules and regulations.



          3.9 Exculpation Among Investors. Each Investor acknowledges that it is not relying
upon any person, firm or corporation, other than the Company, the Subsidiary and its respective
officers and directors, in making its investment or decision to invest in the Company. Each
Investor agrees that no Investor nor the respective controlling persons, officers, directors,
partners, agents, or employees of any Investor shall be liable to any other Investor for any action
heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase
of the Securities.




          3.10 Further Representations by Foreign Investors. If an Investor is not a United
States person, such Investor hereby represents that he or she has satisfied himself or herself as
to the full observance of the laws of his or her jurisdiction in connection with any invitation to
subscribe for the Securities or any use of this Agreement, including (a) the legal requirements
within his jurisdiction for the purchase of the Securities, (b) any foreign exchange restrictions
applicable to such purchase, (c) any governmental or other consents that may need to be obtained,
and (d) the income tax and other tax consequences, if any, that may be relevant to the purchase,
holding, redemption, sale, or transfer of the Securities. Such Investor’s subscription and payment
for, and his or her continued beneficial ownership of the Securities, will not violate any
applicable securities or other laws of his or her jurisdiction.




          4. Conditions of Investors’ Obligations at Closing. The obligations of each Investor
under subsection 1.1(c) of this Agreement are subject to the fulfillment on or before the Closing
of each of the following conditions, the waiver of which shall not be effective against any
Investor who does not consent thereto:




          4.1 Representations and Warranties. The representations and warranties of the Company
and the Subsidiary contained in Section 2 shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of the date of such
Closing.




          4.2 Performance. The Company and the Subsidiary shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement that are required to be
performed or complied with by it on or before the Closing.







16









 








          4.3 Compliance Certificate. The President of the Company and of the Subsidiary shall
deliver to each Investor at the Closing a certificate stating that the conditions specified in
Sections 4.1 and 4.2 have been fulfilled and stating that there shall have been no material adverse
change in the business, affairs, prospects, operations, properties, assets or condition of the
Company or the Subsidiary since the date of the Financial Statements.




          4.4 Qualifications. All authorizations, approvals, or permits, if any, of any foreign
or United States governmental authority or regulatory body that are required in connection with the
lawful issuance and sale of the Securities pursuant to this Agreement shall be duly obtained and
effective as of the Closing.




          4.5 Proceedings and Documents. All corporate and other proceedings in connection with
the transactions contemplated at the Closing and all documents incident thereto shall be reasonably
satisfactory in form and substance to the special counsel for the Investors, and they shall have
received all such counterpart original and certified or other copies of such documents as they may
reasonably request.




          4.6 Secretary’s Certificate. The Secretary of the Company shall deliver to each
Investor at the Closing a certificate stating that the copies of the Company’s Restated Certificate
and Bylaws and Board of Director and stockholder resolutions relating to the sale of the Shares
attached thereto are true and complete copies of such documents and resolutions. The Chief
Financial Officer of the Subsidiary shall deliver to each Investor at the Closing a certificate
stating that the copies of the Subsidiary’s Articles of Association are true and complete copies of
such documents.




          4.7 Proprietary Information and Consulting Agreements. Each employee of the Company
shall have entered into a proprietary information and inventions agreement and each consultant to
the Company shall have entered into a consulting agreement substantially in the form previously
provided or made available to the Investors.




          4.8 Bylaws. The Bylaws of the Company shall provide that the Board of Directors of
the Company shall consist of five (5) persons.




          4.9 Board of Directors. Subject to the provisions of the Restated Certificate, the
Bylaws of the Company, and the Voting Agreement, the initial directors of the Company shall be
Messrs. Bruce Golden, Alex Ott, Mans Hultman, Claes Bjork and Paul Wahl. The directors of the
Subsidiary shall be Messrs. Bruce Golden, Alex Ott, Mans Hultman, Claes Bjork and Paul Wahl.




          4.10 Opinion of Company Counsel and Subsidiary Counsel. Each Investor shall have
received from Helms Mullis & Wicker, PLLC, United States counsel for the Company, an opinion, dated
as of the Closing, in the form attached hereto as Exhibit F. Each Investor shall have
received from Advokatfirman Vinge KB, Swedish counsel for the Subsidiary, an opinion, dated as of
the Closing, in the form attached hereto as Exhibit G.




          4.11 Investors’ Rights Agreement. The Company, each Investor, certain of the holders
of shares of the Company’s outstanding Common Stock as thereby contemplated (the “Common Holders”)
and certain of the holders of shares of the Company’s outstanding Series






17









 







AA Preferred Stock as thereby contemplated (the “Series AA Preferred Holders”) shall have
entered into the Investors’ Rights Agreement in the form attached as Exhibit C.




          4.12 First Refusal and Co-Sale Agreement. The Company, each Investor, the Common
Holders and the Series AA Preferred Holders shall each have entered into a First Refusal and
Co-Sale Agreement in the form attached hereto as Exhibit D.




          4.13 Voting Agreement. The Company, the Subsidiary, each Investor, the Common
Holders, and the Series AA Preferred Holders shall each have entered into a Voting Agreement in the
form attached hereto as Exhibit E.




          4.14 Management Rights Letter. The Company shall have entered into a Management
Rights Letter in the form attached hereto as Exhibit H with each of Accel Europe, L.P. and
Jerusalem Venture Partners, L.P.




          4.15 Secondary Purchase. Simultaneously with the Closing, Accel Europe, L.P. and its
affiliates (collectively, “Accel”) and Jerusalem Venture Partners, L.P. and its affiliates
(collectively, “JVP”) shall have purchased, in the aggregate, Ten Million Two Hundred
Forty-Three Thousand Eight Hundred Thirty-Four (10,243,834) shares of Series AA Preferred Stock of
the Company pursuant to that form of Stock Purchase Agreement attached hereto as Exhibit I.




          4.16 Stock Option Plan. The Option Plan, in form acceptable to the Investors, shall
have been adopted and be in effect as of the Closing.




          4.17 Stock Option Grant. Alex Ott shall have received two options to purchase an
aggregate of up to 1,057,410 shares of the Company’s Common Stock pursuant to the Option Plan.




          4.18 Company Certificate. The Company shall have completed, in the form previously
provided by special counsel to the Investors, an investment questionnaire.




          5. Conditions of the Company’s Obligations at Closing. The obligations of the Company
to each Investor under this Agreement are subject to the fulfillment on or before the Closing of
each of the following conditions by that Investor:




          5.1 Representations and Warranties. The representations and warranties of the
Investors contained in Section 3 shall be true on and as of the Closing with the same effect as
though such representations and warranties had been made on and as of the Closing.




          5.2 Payment of Purchase Price. The Investor shall have delivered the purchase price
specified in Section 1.1(c).




          5.3 Qualifications. All authorizations, approvals, or permits, if any, of any foreign
or United States governmental authority or regulatory body that are required in connection with the
lawful issuance and sale of the Securities pursuant to this Agreement shall be duly obtained and
effective as of the Closing.







18









 








          6. Miscellaneous.




          6.1 Survival of Warranties. The warranties, representations and covenants of the
Company, the Subsidiary and Investors contained in or made pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the Closing and shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of the Investors or the Company.




          6.2 Successors and Assigns. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties (including transferees of any Securities). Nothing in this
Agreement, express or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and assigns any rights, remedies, obligations, or liabilities under
or by reason of this Agreement, except as expressly provided in this Agreement.




          6.3 Governing Law. This Agreement shall be governed by and construed under the laws
of the State of North Carolina as applied to agreements among North Carolina residents entered into
and to be performed entirely within North Carolina.




          6.4 Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.




          6.5 Titles and Subtitles. The titles and subtitles used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting this Agreement.




          6.6 Notices. All notices and other communications given or made pursuant hereto shall
be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be
notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business
hours of the recipient; if not, then on the next business day, (c) five (5) days after having been
sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day
after deposit with an internationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the respective parties
at the addresses set forth on the signature pages attached hereto (or at such other addresses as
shall be specified by notice given in accordance with this Section 6.6).




          6.7 Finder’s Fee. Except for the commissions payable by the Subsidiary to Banc of
America Securities, LLC pursuant to that certain engagement letter dated April 5, 2004, each party
represents that it neither is nor will be obligated for any finders’ fee or commission in
connection with this transaction. Each Investor agrees to indemnify and to hold harmless the
Company from any liability for any commission or compensation in the nature of a finders’ fee (and
the costs and expenses of defending against such liability or asserted liability) for which such
Investor or any of its officers, partners, employees, or representatives is responsible.




          The Company and the Subsidiary agree to indemnify and hold harmless each Investor from any
liability for any commission or compensation in the nature of a finders’ fee (and the costs and
expenses of defending against such liability or asserted liability) for which the






19









 







Company, the Subsidiary or any of its respective officers, employees or representatives is
responsible.




          6.8 Expenses. Irrespective of whether the Closing is effected, the Company and the
Subsidiary shall pay all costs and expenses that it incurs with respect to the negotiation,
execution, delivery and performance of this Agreement. If the Closing is effected, the Company
shall, at the Closing, reimburse the reasonable fees and out-of-pocket expenses of Gunderson
Dettmer and Advokatffirman Lindahl KB, not to exceed [$100,000] in the aggregate, and the
reasonable fees and out-of-pocket expenses of Tulchinsky Stern & Co., not to exceed $5,000. Accel
acknowledges that payment of Gunderson Dettmer’s and Advokatffirman Lindahl KB’s fees by the
Company, and JVP acknowledges that payment of Tulchinsky Stern & Co.’s fees by the Company, raises
a potential conflict of interest and each hereby consents to the payment arrangement set forth
herein. If any action at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the Ancillary Agreements or the Restated Certificate, the prevailing party shall be
entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other
relief to which such party may be entitled.




          6.9 Amendments and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written consent of the Company
and the holders of at least sixty percent (60%) of the Conversion Shares issued or issuable upon
conversion of the Shares purchased hereunder. Any amendment or waiver effected in accordance with
this section shall be binding upon each holder of any securities purchased under this Agreement at
the time outstanding (including securities into which such securities are convertible), each future
holder of all such securities, the Subsidiary and the Company.




          6.10 Severability. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms.




          6.11 Definition of Knowledge. The term “knowledge” means, with respect to any
representation, warranty or other statement by the Company or the Subsidiary set forth in this
Agreement or any Exhibit, Schedule of Exceptions or other Ancillary Agreement, actual or deemed
knowledge of any officer of the Company or the Subsidiary that any such representation, warranty or
other statement is untrue following inquiry or due investigation that is reasonable in the context
of the transactions contemplated by this Agreement. An officer of the Company or Subsidiary, as
applicable, will be deemed to have knowledge of a particular fact, circumstance, event or other
matter if (a) such fact, circumstance, event or other matter is reflected in one or more documents,
written or electronic, that would reasonably be expected to be reviewed by an individual who has
the duties and responsibilities of such individual in the customary performance of such duties and
responsibilities, or (b) such knowledge could be obtained from reasonable inquiry of those persons
employed by the Company or Subsidiary (as the case may be) charged with administrative or
operational responsibility for such matter for such party.







20









 








          6.12 Aggregation of Stock. All shares of the Preferred Stock held or acquired by
affiliated entities or persons shall be aggregated together for the purpose of determining the
availability of any rights under this Agreement.



          6.13 Entire Agreement. This Agreement and the documents referred to herein constitute
the entire agreement among the parties and no party shall be liable or bound to any other party in
any manner by any warranties, representations, or covenants except as specifically set forth herein
or therein.



[Signature pages follow]





21











 




          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.



	 	 	 	 	 
	 	COMPANY:



QLIK TECHNOLOGIES INC.

 	 
	 	By:  	/s/ Mans Hultman
 	 
	 	 	Name:  	Mans Hultman 	 
	 	 	Title:  	 

	 



	 	 	 	 	 
	 	 	Address:  	 

	 
	 	 	 	 

	 


	 	 	 	 	 
	 
	 	SUBSIDIARY:





QLIKTECH INTERNATIONAL AB

 	 
	 	By:  	/s/ Mans Hultman
 	 
	 	 	Name:  	Mans Hultman 	 
	 	 	Title:  	 

	 


	 	 	 	 	 
	 	 	Address:  	 

	 
	 	 	 	 

	 
	 



Signature Page to Qlik Technologies Inc.

Series A Preferred Stock Purchase Agreement




 









 







INVESTOR:




ACCEL EUROPE L.P.




By: Accel Europe Associates L.P.

       Its General Partner




By: Accel Europe Associates L.L.C.

       Its General Partner





	 	 	 	 	 
	 	By:  	                      /s/ Tracy L. Sedlock
 	 
	 	 	Attorney in Fact 	 
	 	 	 	 
	 


ACCEL EUROPE INVESTORS 2004 L.P.




By: Accel Europe Associates L.L.C.

       Its General Partner





	 	 	 	 	 
	 	By:  	                      /s/ Tracy L. Sedlcok
 	 
	 	 	Attorney in Fact 	 


	 	 	 	 	 
	 	 	Address:  	Bruce Golden

Accel Partners

16 St. James Street

London SW1A 1ER

United Kingdom 
	 
	 	 	 


With a copy to:


Richard Zamboldi

Accel Partners

428 University Avenue

Palo Alto, CA 94301



Signature Page to Qlik Technologies Inc.

Series A Preferred Stock Purchase Agreement





 









 







INVESTOR:




JERUSALEM VENTURE PARTNERS IV, L.P.




By: Jerusalem Partners IV, L.P., its General Partner




By: JVP Corp. IV, its General Partner



	 	 	 	 	 
	 	 	 
	 	By:  	                                              /s/ Erel Margalit
 	 
	 	 	Name:  	Erel Margalit 	 
	 	 	Title:  	 
	 
	 


JERUSALEM VENTURE PARTNERS IV-A, L.P.




By: Jerusalem Partners IV, L.P., its General Partner




By: JVP Corp. IV, its General Partner



	 	 	 	 	 
	 	 	 
	 	By:  	                                              /s/ Erel Margalit
 	 
	 	 	Name:  	Erel Margalit 	 
	 	 	Title:  	 
	 
	 


JERUSALEM VENTURE PARTNERS ENTREPRENEURS FUND IV, L.P.




By: Jerusalem Partners IV, L.P., its General Partner




By: JVP Corp. IV, its General Partner



	 	 	 	 	 
	 	 	 
	 	By:  	                                              /s/ Erel Margalit
 	 
	 	 	Name:  	Erel Margalit 	 
	 	 	Title:  	 
	 


	 	 	 	 	 
	 	 	Address:  	41 Madison Avenue, 25th Floor

New York, NY 10010  	 
	 



Signature Page to Qlik Technologies Inc.

Series A Preferred Stock Purchase Agreement




 









 







INVESTOR:




JERUSALEM VENTURE PARTNERS IV (ISRAEL), L.P.




By: Jerusalem Partners IV — Venture Capital, L.P.,

       its General Partner




By: JVP Corp. IV, its General Partner





	 	 	 	 	 
	 	By:  	                                              /s/ Erel Margalit
 	 
	 	 	Name:  	Erel Margalit 	 
	 	 	Title:  	 
	 


	 	 	 	 	 
	 	 	Address:  	Jerusalem Technology Park

Building 1

Malha

Jerusalem 91487

Israel 	 
	 



Signature Page to Qlik Technologies Inc.

Series A Preferred Stock Purchase Agreement





 











 





SCHEDULE A




Schedule of Investors



     Closing Date: November     , 2004



	 	 	 	 	 	 	 	 	 
	 	 	Number of Shares of	 	 	Purchase Price of Shares	 
	Name and Address of Investors	 	Series A Preferred Stock	 	 	of Series A Preferred Stock	 
	 
	 	 	 	 	 	 	 	 
	Accel Europe, L.P.
	 	 	10,042,913	 	 	$	6,325,026.61	 
	c/o Accel Partners
	 	 	 	 	 	 	 	 
	16 St. James Street
	 	 	 	 	 	 	 	 
	London SW1A 1ER
	 	 	 	 	 	 	 	 
	United Kingdom
	 	 	 	 	 	 	 	 
	Attention: Bruce Golden
	 	 	 	 	 	 	 	 
	Telephone: 44 (20) 7170 1000
	 	 	 	 	 	 	 	 
	Facsimile: 44 (20) 7170 1099
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	With a copy to:
	 	 	 	 	 	 	 	 
	Richard Zamboldi
	 	 	 	 	 	 	 	 
	Accel Partners
	 	 	 	 	 	 	 	 
	428 University Avenue
	 	 	 	 	 	 	 	 
	Palo Alto, CA 94301
	 	 	 	 	 	 	 	 
	Telephone: (650) 614-4800
	 	 	 	 	 	 	 	 
	Facsimile: (650) 614-4880
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Accel Europe Investors 2004 L.P.
	 	 	240,635	 	 	$	151,551.92	 
	c/o Accel Partners
	 	 	 	 	 	 	 	 
	16 St. James Street
	 	 	 	 	 	 	 	 
	London SW1A 1ER
	 	 	 	 	 	 	 	 
	United Kingdom
	 	 	 	 	 	 	 	 
	Attention: Bruce Golden
	 	 	 	 	 	 	 	 
	Telephone: 44 (20) 7170 1000
	 	 	 	 	 	 	 	 
	Facsimile: 44 (20) 7170 1099
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	With a copy to:
	 	 	 	 	 	 	 	 
	Richard Zamboldi
	 	 	 	 	 	 	 	 
	Accel Partners
	 	 	 	 	 	 	 	 
	428 University Avenue
	 	 	 	 	 	 	 	 
	Palo Alto, CA 94301
	 	 	 	 	 	 	 	 
	Telephone: (650) 614-4800
	 	 	 	 	 	 	 	 
	Facsimile: (650) 614-4880
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Jerusalem Venture Partners IV, L.P.
	 	 	9,181,178	 	 	$	5,782,305.90	 
	41 Madison Avenue, 25th Floor
	 	 	 	 	 	 	 	 
	New York, NY 10010
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Jerusalem Venture Partners IV-A, L.P.
	 	 	78,414	 	 	$	49,385.14	 
	41 Madison Avenue, 25th Floor
	 	 	 	 	 	 	 	 






S-1









 






	 	 	 	 	 	 	 	 	 
	 	 	Number of Shares of	 	 	Purchase Price of Shares	 
	Name and Address of Investors	 	Series A Preferred Stock	 	 	of Series A Preferred Stock	 
	 
	 	 	 	 	 	 	 	 
	New York, NY 10010
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Jerusalem
Venture Partners 

Entrepreneurs Fund IV, L.P.
	 	 	82,240	 	 	$	51,794.75	 
	41 Madison Avenue, 25th Floor
	 	 	 	 	 	 	 	 
	New York, NY 10010
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Jerusalem Venture Partners IV (Israel),
L.P.
	 	 	220,899	 	 	$	139,122.19	 
	Jerusalem Technology Park
	 	 	 	 	 	 	 	 
	Building 1
	 	 	 	 	 	 	 	 
	Malha
	 	 	 	 	 	 	 	 
	Jerusalem 91487
	 	 	 	 	 	 	 	 
	Israel
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	TOTAL:
	 	 	19,846,279	 	 	$	12,499,186.51	 
	 
	 	 	 	 	 	 






S-2









 






EXHIBIT A




Restated Certificate of Incorporation



E-1









 





EXHIBIT B




List of Stockholders



E-2









 





EXHIBIT C




Investors’ Rights Agreement



E-3









 





EXHIBIT D




First Refusal and Co-Sale Agreement



E-4









 





EXHIBIT E




Voting Agreement



E-5









 





EXHIBIT F




Opinion of United States Counsel for the Company



E-6









 





EXHIBIT G




Opinion of Swedish Counsel for the Subsidiary






E-7









 








EXHIBIT H




Forms of Management Rights Letter



E-8









 





EXHIBIT I




Form of Stock Purchase Agreement




E-9