Exhibit
10.1


 


REGISTRATION
RIGHTS AGREEMENT


 


THIS REGISTRATION RIGHTS AGREEMENT is made and entered
into as of September 9, 2003 by and between Intraware, Inc., a Delaware
corporation (“Company”), and each of the purchasers listed on
Schedule I hereto (each a “Buyer”
and collectively the “Buyers”), in
connection with the Common Stock Purchase Agreement dated September 9,
2003 (the “Purchase Agreement”), by and between the Company and the
Buyers.


 


SECTION 1.                                DEFINITIONS.  Capitalized terms used herein without
definition have their respective meanings set forth in the Purchase
Agreement.  As used in this Agreement,
the following terms have the following meanings:


 


“Business Day” means each Monday, Tuesday,
Wednesday, Thursday and Friday that is not a day on which banking institutions
in The City of New York are authorized or obligated by law or executive order
to close.


 


“Effectiveness Period” shall
mean the period of time between the Filing Deadline Date and the Effectiveness
Termination Date.


 


“Common Stock” means the
shares of common stock, $0.0001 par value, of the Company.


 


“Company” has the meaning set
forth in the first paragraph of this Agreement and also includes the Company’s
successors.


 


“Deferral Notice” has the
meaning set forth in Section 3(f) hereof.


 


“Deferral Period” has the
meaning set forth in Section 3(f) hereof.


 


“Effectiveness Termination Date”
means the date after which all of the Shares, then held by the Buyer, may be
sold within a three month period pursuant to Rule 144 of the Securities Act
without regard to volume limitations.


 


“Closing” has the
meaning set forth in the Purchase Agreement.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the SEC promulgated thereunder.


 


“Filing Deadline Date” has the
meaning set forth in Section 2(a) hereof.


 


“Holder” means any Buyer, any
transferee or assignee thereof to whom any Buyer assigns its rights under this
Agreement and who agrees to become bound by the provisions of this Agreement in
accordance with Section 7 and any transferee or assignee thereof to whom a
transferee or assignee assigns its rights under this Agreement and who agrees
to become bound by the provisions of this Agreement in accordance with
Section 7.


 


 

















 


“Losses” has the meaning set
forth in Section 6(a) hereof.


 


“Material Event” has the
meaning set forth in Section 3(f) hereof.


 


“Purchase Agreement” has the
meaning set forth the first paragraph of this Agreement.


 


“Prospectus” means the
prospectus included in any Registration Statement (including, without
limitation, a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement in reliance
upon Rule 430A promulgated under the Securities Act), as amended or supplemented
by any amendment or prospectus supplement, including post-effective amendments,
and all materials incorporated by reference or explicitly deemed to be
incorporated by reference in such Prospectus.


 


“Registrable Securities” means
the Common Stock purchased by the Buyers under the Purchase Agreement, and any
security issued with respect thereto upon any stock dividend, split or similar
event.


 


“Registration Statement” means
the registration statement of the Company that covers any of the Registrable
Securities pursuant to the provisions of this Agreement including the
Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits, and all materials
incorporated by reference or explicitly deemed to be incorporated by reference
in such registration statement.


 


“SEC” means the Securities and
Exchange Commission.


 


“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations promulgated
by the SEC thereunder.


 


SECTION 2.                                SHELF REGISTRATION.


 


(a)                                  The
Company shall prepare or cause to be prepared, and use best efforts to file or
to cause to be filed with the SEC, by the date (the “Filing Deadline Date”)
forty-five (45) days after the Closing, a Registration Statement for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 of
the Securities Act registering the resale from time to time by the Holders of
the Registrable Securities.  The
Registration Statement shall be on an appropriate form permitting registration
of such Registrable Securities for resale by the Holders in accordance with the
methods of distribution elected by the Holders and set forth in the
Registration Statement.  The Company
shall use commercially reasonable efforts to cause the Registration Statement
to be declared effective under the Securities Act as promptly as is practicable
and within one hundred and eighty (180) days after the Filing Deadline Date,
but in no event later than three hundred and sixty-five (365) days after the Filing
Deadline Date, and to keep the Registration Statement continuously effective
under the Securities Act until the expiration of the Effectiveness Period.  At the time the Registration Statement is
declared effective, the Holders shall be named as the selling securityholders
in the Registration Statement and the related Prospectus in such a manner as to


 


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permit the Holders to deliver such Prospectus to purchasers of
Registrable Securities in accordance with applicable law.


 


(b)                                 If
the Company proposes to register any of its securities under the Securities Act
in connection with the public offering of such securities solely for cash
(other than a registration on Form S-4, Form S-8, or any successor or similar
forms, or the registration statement filed pursuant to the Registration Rights
Agreements dated August 12, 2002, by and between the Company and Zomax
Incorporated), it will promptly, but not later than twenty-one (21) days before
the anticipated date of filing such Registration Statement, give written notice
to the Holders.  Upon the written
request of any of the Holders made within fourteen (14) days after the receipt
of any such notice (which request shall specify the Registrable Securities
intended to be disposed of by any such Holder and the intended method of
distribution thereof), the Company will use its reasonable efforts to effect
the registration under the Securities Act of all Registrable Securities which
the Company has been requested to register by such Holder in accordance with
the intended methods of distribution specified in such request; provided,
however, that (a) if, at any time after giving written notice of its intention
to register any securities and prior to the effective date of the Registration
Statement filed in connection with such registration, the Company determines
for any reason not to proceed with such registration, the Company may, at its
election, give written notice of such determination to the relevant Holders and,
thereupon, will be relieved of its obligation to register any Registrable
Securities in connection with such registration, and (b) in case of a
determination by the Company to delay registration of its securities, the
Company will be permitted to delay the registration of Registrable Securities
for the same period as the delay in registering such other securities;
provided, however, that the provisions of this Section 2(b) will not be
deemed to limit or otherwise restrict the rights of the Holders under Section 2(a)
of this Agreement.


 


(c)                                  The
Company shall supplement and amend the Registration Statement if required by
the rules, regulations or instructions applicable to the registration form used
by the Company for such Registration Statement, if required by the Securities
Act or, to the extent to which the Company does not reasonably object, as
reasonably requested by the Holders.


 


(d)                                 Each
Holder agrees that if they wish to sell Registrable Securities pursuant to the
Registration Statement and related Prospectus, they will do so only in
accordance with this Agreement.


 


SECTION 3.                                REGISTRATION
PROCEDURES.  In connection with the
registration obligations of the Company under Section 2 hereof, the
Company shall:


 


(a)                                  Until
the Effectiveness Termination Date, prepare and use its commercially reasonable
efforts to file with the SEC such amendments and post-effective amendments to
the Registration Statement as may be necessary to keep such Registration
Statement continuously effective for the applicable period specified in
Section 2(a); use its best efforts to cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act; and use its commercially reasonable efforts to comply with
the provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement until the


 


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Effectiveness Termination Date in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or such Prospectus as so supplemented.


 


(b)                                 As
promptly as practicable give notice to the Holders (i) when the
Registration Statement or any post-effective amendment has been declared
effective, (ii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceedings for that purpose,
(iii) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (iv) of the occurrence of
(but not the nature of or details concerning) a Material Event and (v) of
the determination by the Company that a post-effective amendment to the
Registration Statement will be filed with the SEC, which notice may, at the
discretion of the Company (or as required pursuant to Section 3(f)), state
that it constitutes a Deferral Notice, in which event the provisions of Section 3(f) shall
apply.


 


(c)                                  Use
commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction in which they have been
qualified for sale, in either case as promptly as practicable.


 


(d)                                 During
the Effectiveness Period, deliver to any Holder in connection with any sale of
Registrable Securities pursuant to the Registration Statement, without charge,
as many copies of the Prospectus or Prospectuses relating to such Registrable
Securities (including each preliminary prospectus) and any amendment or
supplement thereto as any Holder may reasonably request; and the Company hereby
consents (except during such periods that a Deferral Notice is outstanding and
has not been revoked) to the use of such Prospectus or each amendment or
supplement thereto by the Holders in connection with any offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto in the manner set forth therein.


 


(e)                                  Prior
to any public offering of the Registrable Securities pursuant to the
Registration Statement, register or qualify or cooperate with the Holders in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the United
States as the Holders reasonably request in writing; prior to any public
offering of the Registrable Securities pursuant to the Registration Statement,
keep each such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period in connection with the Holders’ offer and sale
of Registrable Securities pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of such Registrable
Securities in the manner set forth in the Registration Statement and the
related Prospectus; provided, that the Company will not be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Agreement or (ii) take any action that would subject
it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.


 


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(f)                                    Upon
(A) the issuance by the SEC of a stop order suspending the effectiveness of the
Registration Statement or the initiation of proceedings with respect to the
Registration Statement under Section 8(d) or 8(e) of the Securities Act,
(B) the occurrence of any event or the existence of any fact (a “Material
Event”) as a result of which the Registration Statement shall
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any Prospectus shall contain any untrue statement of a
material fact or omit to state any 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, or (C) the occurrence or existence
of any pending extraordinary corporate development, public filing with the SEC
or other similar material event with respect to the Company that, in the
reasonable discretion of the Company and after receipt of advice of outside
legal counsel, makes it appropriate to suspend the availability of the
Registration Statement and the related Prospectus, Company shall (i) in
the case of clause (B) above, subject to the next sentence, as promptly as
practicable prepare and file, if necessary pursuant to applicable law, a
post-effective amendment to such Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file
any other required document that would be incorporated by reference into such
Registration Statement and Prospectus so that such Registration Statement does
not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and such Prospectus does not contain any untrue statement of a
material fact or omit to state any 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, and, in the case of a
post-effective amendment to a Registration Statement, subject to the next
sentence, use its commercially reasonable efforts to cause it to be declared
effective as promptly as is practicable, and (ii) give notice to the
Holders that the availability of the Registration Statement is suspended (a “Deferral
Notice”) and, upon receipt of any Deferral Notice, the Holders agree
not to sell any Registrable Securities pursuant to the Registration Statement
until the Holders’ receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above, or until it is advised in writing by the
Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated
by reference in such Prospectus.  The
Company will use commercially reasonable efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) above, as promptly as
is practicable, (y) in the case of clause (B) above, as soon as, in the
reasonable discretion of the Company and after receipt of advice of outside
legal counsel, public disclosure of such Material Event would not be
prejudicial to or contrary to the interests of the Company or, if necessary to
avoid unreasonable burden or expense, as soon as practicable thereafter and (z)
in the case of clause (C) above, as soon as, in the reasonable discretion of the
Company and after receipt of advice of outside legal counsel, such suspension
is no longer appropriate  (such period,
during which the availability of the Registration Statement and any Prospectus
is suspended being a “Deferral Period”).  Notwithstanding the foregoing, no Deferral
Period instituted pursuant to clause (B) or clause (C) above shall last for a
period of time in excess of thirty (30) days from the date of the Material
Event or other occurrence or state of facts on account of which such Deferral
Period is instituted, and the Company shall institute no more than one (1)
Deferral Period in the aggregate pursuant to clauses (B) and (C) above in any
consecutive twelve (12) month period.


 


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SECTION 4.                                HOLDERS’
OBLIGATIONS.  Each Holder agrees, by
acquisition of the Registrable Securities, that it shall not be entitled to
sell any of such Registrable Securities pursuant to the Registration Statement
or to receive a Prospectus relating thereto, unless such Holder has furnished
the Company with all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not misleading
and any other information regarding such Holder and the distribution of such
Registrable Securities as the Company may from time to time reasonably
request.  Any sale of any Registrable
Securities by any Holder shall constitute a representation and warranty by such
Holder that the information relating to such Holder and its plan of
distribution is as set forth in the Prospectus delivered by such Holder in
connection with such disposition, that such Prospectus does not as of the time
of such sale contain any untrue statement of a material fact relating to or
provided by such Holder or relating to its plan of distribution and that such
Prospectus does not as of the time of such sale omit to state any material fact
relating to or provided by such Holder or relating to its plan of distribution
necessary to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading.


 


SECTION 5.                                REGISTRATION
EXPENSES.  The Company shall bear all
fees and expenses incurred in connection with the performance by the Company of
its obligations under this Agreement (including, without limitation, all
registration and filing fees, fees with respect to filings required to be made
with the National Association of Securities Dealers, Inc., fees and expenses of
compliance with securities or blue sky laws, printing expenses, messenger,
telephone and distribution expenses associated with the preparation and
distribution of any Registration Statement, all fees and expenses associated
with the listing of any Registrable Securities on any securities exchange or exchanges,
the fees and disbursements of counsel for the Company and its accountants, any
underwriting fees).  Notwithstanding the
provisions of this Section 5, the seller of Registrable Securities shall
pay all underwriting fees and expenses, selling commissions and stock transfer
and documentary stamp taxes, if any, applicable to any Registrable Securities
registered and sold by such seller and all registration expenses to the extent
the Company is prohibited from paying such expenses under applicable law.


 


SECTION 6.                                INDEMNIFICATION.


 


(a)                                  INDEMNIFICATION
BY THE COMPANY.  The Company shall
indemnify and hold harmless each Holder and each person, if any, who controls
any Holder (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) from and against any losses,
liabilities, claims, damages and expenses (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (collectively, “Losses”), arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon 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; provided, however, that the Company shall not be
liable to any Holder in any such case to the extent that any such Losses arise
out of or are based upon an untrue statement or alleged untrue statement
contained in or omission or alleged omission from any of such documents in
reliance upon and in conformity with any of the information


 


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relating to such Holder furnished to the Company in writing by such
Holder expressly for use therein; provided  further that the
indemnification contained in this paragraph shall not inure to the benefit of
any Holder of Registrable Securities (or to the benefit of any person
controlling any Holder) on account of any such Losses arising out of or based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus to the extent that a prospectus
relating to such Registrable Securities was required to be delivered by any
Holder under the Securities Act, if either (A) (i) such Holder failed
to send or deliver a copy of the Prospectus with or prior to the delivery of
written confirmation of the sale by such Holder to the person asserting the
claim from which such Losses arise and (ii) the Prospectus would have
corrected such untrue statement or alleged untrue statement or such omission or
alleged omission, or (B) (x) such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and (y) having previously been furnished by or on
behalf of the Company with copies of the Prospectus as so amended or
supplemented, such Holder thereafter fails to deliver such Prospectus as so
amended or supplemented, with or prior to the delivery of written confirmation
of the sale of a Registrable Security to the person asserting the claim from
which such Losses arise.


 


(b)                                 INDEMNIFICATION
BY HOLDER.  Each Holder agrees to
indemnify and hold harmless the Company and its respective directors and
officers, 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 all Losses arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or based upon 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, to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with information furnished to the Company in writing by such Holder,
which relates solely to such Holder.


 


(c)                                  CONDUCT
OF INDEMNIFICATION PROCEEDINGS.  In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, 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 reasonable 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 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


 


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jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all indemnified parties,
and that all such fees and expenses shall be reimbursed as they are incurred.  Such separate firm shall be designated in
writing by, in the case of parties indemnified pursuant to Section 6(a),
the relevant Holder and, in the case of parties indemnified pursuant to
Section 6(b), 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. 
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 includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding and does not include a statement as to, or an admission of, fault,
culpability or a failure to act by or on behalf of an indemnified party.


 


(d)                                 CONTRIBUTION.  To the extent that the indemnification
provided for in this Section 6 is unavailable to an indemnified party
under Section 6(a) or 6(b) hereof in respect of any Losses or is
insufficient to hold such indemnified party harmless, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such Losses (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 or (ii) if the
allocation provided in clause (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 (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, as well as any other relevant equitable
considerations.  Benefits received by
the Holders shall be deemed to be equal to the value of receiving Registrable
Securities that are registered under the Securities Act.  The relative fault of the relevant Holder on
the one hand and the Company 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 relevant Holder or by the Company, and
the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.  Benefits received by any underwriter shall be deemed to be equal
to the total underwriting discounts and commissions, as set forth on the cover
page of the Prospectus forming a part of the Registration Statement which
resulted in such Losses.


 


The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were determined by
pro rata allocation or by any other method or allocation that does not take
into account the equitable considerations referred to in the immediately
preceding paragraph.  The amount paid or
payable by an indemnified party as a result of the Losses 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
such indemnified party in connection with investigating or defending any such
action or claim.  Notwithstanding this
Section 6(d), an indemnifying party that is a selling Holder of
Registrable Securities shall not be required to


 


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contribute any amount in excess of the amount by which the net proceeds
received by such indemnifying party from Registrable Securities sold and
distributed to the public exceeds the amount of any damages that such
indemnifying party 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.


 


(e)                                  The
indemnity and contribution provisions contained in this Section 6 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 the relevant Holder or any person controlling such Holder, or the Company,
or the Company’s officers or directors or any person controlling the Company
and (iii) the sale of any Registrable Securities by such Holder.


 


SECTION 7.                                ASSIGNMENT OF
REGISTRATION RIGHTS.  The rights under
this Agreement shall be automatically assignable by each Holder to any
transferee of all of the Registrable Securities if: (i) such assignment is
pursuant to a merger, consolidation or sale of substantially all of the assets
of such Holder; (ii) such Holder agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to
the Company within a reasonable time after such assignment; (iii) the Company
is, within a reasonable time after such transfer or assignment, furnished with
written notice of the name and address of such transferee or assignee, (iv)
immediately following such transfer or assignment the further disposition of
such securities by the transferee or assignee is restricted under the 1933 Act
and applicable state securities laws; (v) at or before the time the Company
receives the written notice contemplated by clause (iii) of this sentence the
transferee or assignee provides the Company with a writing agreeing to be bound
by all of the provisions contained herein; and (vi) such transfer shall have
been made in accordance with the applicable requirements of the Purchase
Agreement.


 


SECTION 8.                                MISCELLANEOUS.


 


(a)                                  AMENDMENTS
AND WAIVERS.  The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Holders of at least a majority of the Registrable Securities
then outstanding.  Each Holder of
Registrable Securities outstanding at the time of any such amendment,
modification, supplement, waiver or consent or thereafter shall be bound by any
such amendment, modification, supplement, waiver or consent effected pursuant
to this Section 8(a), whether or not any notice, writing or marking
indicating such amendment, modification, supplement, waiver or consent appears
on the Registrable Securities or is delivered to such Holder.


 


(b)                                 NOTICES.  All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
by telecopier, by courier guaranteeing overnight delivery or by first-class
mail, return receipt requested, and shall be deemed given (i) when made,
if made by hand delivery, (ii) upon confirmation, if made by telecopier,
(iii) one (1) Business Day after being deposited with such courier, if
made by overnight courier or (iv) on the date indicated on the notice of
receipt, if made by first-class mail, to the parties as follows:


 


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(1)                                  if
to a Holder, at the most recent location for such Holder provided to the
Company;


 


(2)                                  if
to the Company, to:


 


Intraware,
Inc.

25 Orinda Way

Orinda, CA 94563

Attention:  John J. Moss, Vice President
and General Counsel


 


with a copy to:


 


Wilson Sonsini Goodrich
& Rosati, Professional Corporation

650 Page Mill Road

Palo Alto, CA  94304

Attention: Adam R. Dolinko

Telecopy No.:  (650) 493-6811


 


(c)                                  ADDITIONAL
PARTIES.  The parties hereto agree that
additional holders of securities of the Company may, with the consent only of
the Company, be added as parties to this Agreement with respect to any or all
securities of the Company held by them, and shall thereupon be deemed for all
purposes “Holders” hereunder.  Any such
additional party shall execute a counter-part of this Agreement, and upon
execution by such additional party and by the Company, shall be considered a
Holder for purposes of this Agreement.


 


(d)                                 SUCCESSORS
AND ASSIGNS.  Except as set forth in
Section 7 above, this Agreement shall not inure to the benefit of any
other person other than the parties hereto, except a successor of the Company.


 


(e)                                  COUNTERPARTS.  This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be original and all of which taken
together shall constitute one and the same agreement.


 


(f)                                    HEADINGS.  The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


 


(g)                                 GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.


 


(h)                                 JURISDICTION.  Any action or proceeding seeking to enforce
any provision of, or based on any right arising out of, this Agreement may be
brought against any of the parties in the courts of the State of California or,
if it has or can acquire jurisdiction, in the United States District Court for
the Northern District of California, and each of the parties consents to the
jurisdiction of such courts (and of the appropriate appellate courts) in any
such action or proceeding


 


10

















 


and waives any objection to venue laid therein.  Process in any action or proceeding referred
to in the preceding sentence may be served on any party anywhere in the world.


 


(i)                                     SEVERABILITY.  If any term provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby, and the parties hereto shall use their best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.


 


(j)                                     ENTIRE
AGREEMENT.  This Agreement is intended
by the parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Registrable
Securities.  This Agreement supersedes
all prior agreements and undertakings among the parties with respect to such
registration rights.  No party hereto
shall have any rights, duties or obligations other than those specifically set
forth in this Agreement.


 


(k)                                  TERMINATION.  This Agreement and the obligations of the
parties hereunder shall terminate as of the Effectiveness Termination Date,
except for Section 6 hereof which shall remain in effect in accordance
with its terms after the Effectiveness Termination Date.


 


(Remainder
of page left intentionally blank.)


 


11

















 


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


 


	
   

  	
  INTRAWARE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H. Jackson

  
	
   

  	
   

  
	
   

  	
  Name: Peter H. Jackson

  
	
   

  	
   

  
	
   

  	
  Title: CEO &
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Buyer

  
	
   

  	
   

  
	
   

  	
  PERMAL U.S. OPPORTUNITIES LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Name: Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Title:  Manager of Apex Capital, LLC, the

  authorized investment advisor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ZAXIS EQUITY NEUTRAL, LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Name: Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Title:  Manager of Apex Capital, LLC, the

  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ZAXIS INSTITUTIONAL PARTNERS, LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Name: Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Title:  Manager of Apex Capital, LLC, the

  General Partner

  



 


12

















 


	
   

  	
  POLLAT, EVANS & CO.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Name: Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Title:  Manager of Apex Capital, LLC, the

  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PETER W. BRANAGH AND RAMONA Y.

  BRANAGH, TRUSTEES FOR THE

  BRANAGH REVOCABLE TRUST

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Name: Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Title:  Manager of Apex Capital, LLC, the

  authorized investment advisor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ZAXIS OFFSHORE LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Name: Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Title:  Manager of Apex Capital, LLC, the

  authorized investment advisor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ZAXIS INSTITUTIONAL OFFSHORE

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Name: Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Title:  Manager of Apex Capital, LLC, the

  authorized investment advisor

  



 


13

















 


	
   

  	
  ZAXIS PARTNERS, LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Name: Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Title:  Manager of Apex Capital, LLC, the

  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BARCLAYS GLOBAL INVESTORS LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Name: Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Title:  Manager of Apex Capital, LLC, the

  authorized investment advisor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUGGENHEIM PORTFOLIO COMPANY XIII

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Name: Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Title:  Manager of Apex Capital, LLC, the

  authorized investment advisor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SANFORD
  J. COLEN AND JEAN N.

  COLEN AS TRUSTEES OF THE COLEN

  TRUST DATEDJUNE 20, 2001

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Name: Sanford J. Colen

  
	
   

  	
   

  
	
   

  	
  Title: Trustee

  
				



 


14

















 


	
   

  	
  MITCHELL
  AND DAREN BERKETT

  TUCHMAN, TRUSTEES OF THE PENNY

  TRUST UTD  4/5/99

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mitchell Tuchman

  
	
   

  	
   

  
	
   

  	
  Name: Mitchell Tuchman

  
	
   

  	
   

  
	
   

  	
  Title: Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Charles H. Finnie

  
	
   

  	
  CHARLES H. FINNIE

  
	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Adam Fiore

  
	
   

  	
  ADAM FIORE

  



 


15

















 


Schedule I


 


Schedule of
Buyers


 


	
   

  	
  Name/Address of Buyer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Permal U.S.
  Opportunities Limited

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Zaxis Equity Neutral,
  LP

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Zaxis Institutional
  Partners, LP

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Pollat, Evans & Co.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Peter W. Branagh and
  Ramona Y. Branagh, Trustees for the Branagh Revocable Trust

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Zaxis Offshore Limited

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Zaxis Institutional
  Offshore

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Zaxis Partners, LP

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Barclays Global
  Investors Ltd.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Guggenheim Portfolio
  Company XIII

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Sanford J. Colen and
  Jean N. Colen as Trustees of the Colen Trust datedJune 20, 2001

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Mitchell and Daren
  Berkett Tuchman, Trustees of the Penny Trust UTD  4/5/99

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Charles H. Finnie

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Adam M. Fiore

  	
   

  



 


16