Exhibit
10.2


 


COMMON
STOCK PURCHASE AGREEMENT


 


COMMON STOCK PURCHASE AGREEMENT (this “Agreement”),
dated as of September 9, 2003, by and among Intraware, Inc., a Delaware
corporation (the “Company”), and the purchasers listed on
Schedule I hereto (each a “Buyer” and collectively the “Buyers”).


 


WHEREAS:


 


A.                                   The
Company and the Buyers are executing and delivering this Agreement in reliance
upon the exemption from securities registration afforded by Rule 506 of
Regulation D (“Regulation D”) as promulgated by the
United States Securities and Exchange Commission (the “SEC”) under the Securities
Act of 1933, as amended (the “1933 Act”);


 


B.                                     The
Buyers wish to purchase, upon the terms and conditions stated in this
Agreement, 4,000,000 shares of the Company’s Common Stock (the “Shares”);
and


 


C.                                     Contemporaneously
with the execution and delivery of this Agreement, the parties hereto are
executing and delivering a Registration Rights Agreement substantially in the
form attached hereto as Exhibit A (the “Registration Rights Agreement”)
pursuant to which the Company has agreed to provide certain registration rights
with respect to the Shares under the 1933 Act and the rules and regulations
promulgated thereunder, and applicable state securities laws.


 


NOW THEREFORE, the Company and each Buyer
hereby agree as follows:


 


1.                                       PURCHASE
AND SALE OF SHARES.


 


(a)                                  Purchase
of Shares.  Subject to the
satisfaction (or waiver) of the conditions set forth in Sections 5 and 6
below, the Company shall issue and sell to each Buyer and each Buyer severally
agrees to purchase from the Company the respective number of Shares set forth
opposite such Buyer’s name on the Schedule of Buyers (the “Closing”).  The purchase price of each share shall be
$1.55 (the “Purchase Price”) and the aggregate Purchase Price at the
Closing is $6,200,000.


 


(b)                                 Closing
Date.  The date and time of the
Closing (the “Closing Date”) shall be 5:00 a.m. Pacific Time, on
September 9, 2003, subject to satisfaction or waiver of the conditions to
the Closing set forth in Sections 6 and 7 below (or such other earlier
date as is mutually agreed to in writing by the Company and the Buyer).  The Closing shall occur on the Closing Date
at the offices of Wilson Sonsini Goodrich & Rosati, 650 Page Mill
Road, Palo Alto, CA 94304.


 


(c)                                  Form
of Payment.  On the Closing Date,
(i) each Buyer shall pay the aggregate Purchase Price to the Company for
the Shares to be issued and sold to such Buyer as set forth on the
Schedule of Buyers, by wire transfer of immediately available funds in accordance
with the Company’s written wire instructions and (ii) the Company shall
deliver to the Company’s transfer agent instructions to issue the stock
certificates representing such number of the Shares, and delivery of
certificates representing the Shares shall occur within five (5) business days
of the Closing Date.


 

















 


2.                                       EACH
BUYER’S REPRESENTATIONS AND WARRANTIES.


 


Each Buyer severally and
not jointly represents and warrants that:


 


(a)                                  Investment
Purpose.  The Buyer is acquiring the
Shares for its own account for investment only and not with a view towards, or
for resale in connection with, the public sale or distribution thereof, except
pursuant to sales registered or exempted under the 1933 Act.


 


(b)                                 Accredited
Investor Status.  The Buyer is an
“accredited investor” as that term is defined in Rule 501(a) of
Regulation D.


 


(c)                                  Reliance
on Exemptions.  The Buyer
understands that the Shares are being offered and sold to it in reliance on
specific exemptions from the registration requirements of United States federal
and state securities laws and that the Company is relying in part upon the
truth and accuracy of, and the Buyer’s compliance with, the representations,
warranties, agreements, acknowledgments and understandings of the Buyer set
forth herein in order to determine the availability of such exemptions and the
eligibility of the Buyer to acquire the Shares.


 


(d)                                 Information.  The Buyer and its advisors, if any, have
been furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale of the
Shares, which have been requested by the Buyer.  The Buyer and its advisors, if any, have been afforded the
opportunity to ask questions of the Company. 
Neither such inquiries nor any other due diligence investigations
conducted by the Buyer or its advisors, if any, or its representatives shall
modify, amend or affect the Buyer’s right to rely on the Company’s
representations and warranties contained herein.  The Buyer understands that its investment in the Shares involves
a high degree of risk.  The Buyer has
sought such accounting, legal and tax advice as it has considered necessary to
make an informed investment decision with respect to its acquisition of the
Shares.


 


(e)                                  No
Governmental Review.  The Buyer
understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation or
endorsement of the Shares or the fairness or suitability of the investment in
the Shares nor have such authorities passed upon or endorsed the merits of the
offering of the Shares.


 


(f)                                    Transfer
or Resale.  The Buyer understands
that except as provided in the Registration Rights Agreement: (i) the
Shares have not been and are not being registered under the 1933 Act or any
state securities laws, and may not be offered for sale, sold, assigned or
transferred unless (A) subsequently registered thereunder, (B) the
Buyer shall have delivered to the Company an opinion of counsel, in a generally
acceptable form, to the effect that such Shares to be sold, assigned or
transferred may be sold, assigned or transferred pursuant to an exemption from
such registration, or (C) the Buyer provides the Company with reasonable
assurance that such Shares can be sold, assigned or transferred pursuant to
Rule 144 promulgated under the 1933 Act, as amended, (or a successor rule
thereto) (“Rule 144”); (ii) any sale of the Shares made in
reliance on Rule 144 may be made only in accordance with the terms of
Rule 144 and further, if Rule 144 is not applicable, any resale of
the Shares under circumstances in which the seller (or the person through whom
the sale is made) may be deemed to be an underwriter (as that term is defined
in the 1933 Act) may require


 


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compliance with some other exemption under the 1933 Act or the rules
and regulations of the SEC thereunder; and (iii) neither the Company nor
any other person is under any obligation to register the Shares for resale
under the 1933 Act or any state securities laws or to comply with the terms and
conditions of any resale exemption thereunder.


 


(g)                                 Legends.  The Buyer understands that the certificates
or other instruments representing the Shares, until such time as the sale of
the Shares have been registered under the 1933 Act as contemplated by the
Registration Rights Agreement, shall bear a restrictive legend in substantially
the following form (and a stop-transfer order may be placed against transfer of
such stock certificates):


 


THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS.  THE SECURITIES MAY NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS, OR (B) AN OPINION OF COUNSEL, IN
A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT
OR APPLICABLE STATE SECURITIES LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144
UNDER SAID ACT.


 


The legend set forth above shall be removed and the
Company shall issue a certificate without such legend to the holder of the
Shares upon which it is stamped, if, unless otherwise required by state
securities laws, (i) such Shares are registered for sale under the 1933
Act, (ii) in connection with a sale, assignment or other transfer, such
holder provides the Company with an opinion of counsel, in a generally
acceptable form, to the effect that such sale, assignment or transfer of the
Shares may be made without registration under the 1933 Act, or (iii) such
holder provides the Company with reasonable assurance that the Shares can be
sold, assigned or transferred pursuant to Rule 144 without any restriction
as to the number of securities acquired as of a particular date that can then
be immediately sold.


 


(h)                                 Validity;
Enforcement.  This Agreement has
been duly and validly authorized, executed and delivered on behalf of such
Buyer and is a valid and binding agreement of such Buyer enforceable against
such Buyer in accordance with its terms, subject as to enforceability to
general principles of equity and to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to, or
affecting generally, the enforcement of applicable creditors’ rights and
remedies.


 


(i)                                     Residency.  The Buyer’s address is set forth on the
Schedule of Buyers.


 


3.                                       REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.


 


Other than as set forth
in the Company’s Disclosure Schedules which are attached hereto, the Company
represents and warrants to the Buyer, that:


 


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(a)                                  Organization
and Qualification.  The Company and
its “Subsidiaries”
(which for purposes of this Agreement means any entity in which the Company,
directly or indirectly, owns capital stock or holds a majority or similar
interest) are corporations duly organized and validly existing in good standing
under the laws of the jurisdiction in which they are incorporated, and have the
requisite corporate power and authorization to own their properties and to
carry on their business as now being conducted.  Each of the Company and its Subsidiaries is duly qualified as a
foreign corporation to do business and is in good standing in every
jurisdiction in which its ownership of property or the nature of the business
conducted by it makes such qualification necessary, except to the extent that
the failure to be so qualified or be in good standing would not have a Material
Adverse Effect.  As used in this
Agreement, “Material Adverse Effect” means any material adverse effect on
the business, properties, assets, operations, results of operations, financial
condition or prospects of the Company and its Subsidiaries, if any, taken as a
whole, or on the transactions contemplated hereby or by the agreements and
instruments to be entered into in connection herewith, or on the authority or
ability of the Company to perform its obligations under the Transaction
Documents (as defined below).


 


(b)                                 Authorization;
Enforcement; Validity.  The Company
has the requisite corporate power and authority to enter into and perform this
Agreement and the Registration Rights Agreement, (together, the “Transaction
Documents”) and to file, and perform its obligations under, the
Transaction Documents, and to issue the Shares in accordance with the terms
hereof and thereof.  The execution and
delivery of the Transaction Documents by the Company and the consummation by
the Company of the transactions contemplated hereby and thereby, including
without limitation the issuance of the Shares, have been duly authorized by the
Company’s Board of Directors and no further consent or authorization is required
by the Company, its Board of Directors or its stockholders (including, without
limitation, pursuant to Rule 4350 of the Nasdaq Marketplace Rules).  The Transaction Documents of even date
herewith have been duly executed and delivered by the Company, and constitute
the valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as such enforceability may be
limited by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors’ rights and remedies.


 


(c)                                  Capitalization.  The authorized capital stock of the Company
consists of (i) 250,000,000 shares of common stock of which (A) 54,078,713
shares were issued and outstanding as of August 31, 2003 and (B)
13,088,045 shares were reserved for issuance upon the exercise or conversion,
as the case may be, of outstanding options, warrants or other convertible
securities as of August 31, 2002 and (ii) 10,000,000 shares of convertible
redeemable preferred stock, of which 665,164 shares were issued and outstanding
as of August 31, 2003 and none of which were reserved for issuance upon
the exercise or conversion, as the case may be, of outstanding options,
warrants or other convertible securities. 
All issued and outstanding shares of the Company’s capital stock have
been duly authorized and validly issued, and are fully paid and nonassessable.  Except as set forth herein or in the Company’s
Disclosure Schedules, there are no (i) outstanding rights (including, without
limitation, preemptive or other similar rights), warrants or options to
acquire, or instruments convertible into or exchangeable for, any unissued
shares of capital stock or other equity interest in the Company, or any
contract, commitment, agreement, understanding or arrangement of any kind to
which the Company is a party and relating to the issuance or sale of any
capital stock of the


 


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Company; or (ii) obligations of the Company to purchase, redeem or
otherwise acquire any of its outstanding capital stock or any interest therein
or to pay any dividend or make any other distribution in respect thereof.


 


(d)                                 Issuance
of Shares.  The Shares are duly
authorized and, upon issuance at the Closing, shall be (i) validly issued,
fully paid and non-assessable and (ii) free from all taxes, liens, charges
and encumbrances, other than those imposed by the Buyers.  The issuance by the Company of the Shares is
exempt from registration under the 1933 Act.


 


(e)                                  No
Conflicts.  Except as disclosed in
set forth in Section 3(e) of the Company’s Disclosure Schedules, the
execution, delivery and performance of the Transaction Documents by the Company,
the performance by the Company of its obligations contemplated hereby and
thereby will not (i) result in a violation of the Company’s Certificate of
Incorporation, any Certificate of Designations, preferences and rights of any
outstanding series of preferred stock of the Company or the Company’s bylaws or
(ii) conflict with, or constitute a default (or an event which with notice or
lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, any material
agreement to which the Company is a party, or (iii) result in a violation of
any law, rule, regulation, order, judgment or decree (including federal and
state securities laws and regulations and the rules and regulations of The
Nasdaq Stock Market, Inc.) applicable to the Company or any of its Subsidiaries
or by which any property or asset of the Company or any of its Subsidiaries is
bound or affected.


 


(f)                                    Consents.  Except for the filing of the Registration
Statement (as defined in the Registration Rights Agreement) with the SEC, and
except as provided in Section 4(b) of this Agreement, the Company is not
required to obtain any consent, authorization or order of, or make any filing
or registration with or give any notice to, any third party (including, without
limitation, any court or governmental agency or any regulatory or
self-regulatory agency) in order for it to execute, deliver or perform any of
its obligations under or contemplated by the Transaction Documents.  All consents, authorizations, orders,
filings and registrations which the Company is required to obtain pursuant to
the preceding sentence have been obtained or effected on or prior to the date
hereof.  The Company and its
Subsidiaries are unaware of any facts or circumstances which might prevent the
Company from obtaining or effecting any of the foregoing.


 


(g)                                 No
General Solicitation; Placement Agent. 
Neither the Company, nor any of its affiliates, nor any person acting on
its or their behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the 1933 Act) in
connection with the offer or sale of the Shares.  The Company acknowledges that it has not engaged a placement
agent in connection with the sale of the Shares.


 


(h)                                 Company
Not an “Investment Company”.  The
Company has been advised of the rules and requirements under the Investment
Company Act of 1940, as amended (the “Investment Company Act”).  The Company is not, and immediately after
receipt of payment for the Shares will not be, an “investment company” or an
entity “controlled” by an “investment company” within the meaning of the
Investment Company Act and shall conduct its business in a manner so that it
will not become subject to the Investment Company Act.


 


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(i)                                     No
Integrated Offering.  None of the
Company, its Subsidiaries, any of their affiliates, and any person acting on
their behalf has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, under circumstances that
would require registration of any of the Shares under the 1933 Act or cause
this offering of the Shares to be integrated with prior offerings by the
Company for purposes of the 1933 Act or any applicable stockholder approval
provisions, including, without limitation, under the rules and regulations of
any exchange or automated quotation system on which any of the securities of
the Company are listed or designated. 
None of the Company, its Subsidiaries, their affiliates and any person
acting on their behalf will take any action or steps referred to in the
preceding sentence that would require registration of any of the Shares under
the 1933 Act or cause the offering of the Shares to be integrated with other
offerings.


 


(j)                                     Application
of Takeover Protections; Rights Agreement. 
The Company and its board of directors have taken all necessary action,
if any, in order to render inapplicable any control share acquisition, business
combination, poison pill (including any distribution under a rights agreement)
or other similar anti-takeover provision under the Certificate of Incorporation
or the laws of the state of its incorporation which is or could become
applicable to the Buyer as a result of the transactions contemplated by this
Agreement, including, without limitation, the Company’s issuance of the Shares
and the Buyers’ ownership of the Shares. 
The Company has not adopted a shareholder rights plan or similar
arrangement relating to accumulations of beneficial ownership of Common Stock
or a change in control of the Company.


 


(k)                                  SEC
Documents; Financial Statements. 
Since February 28, 2003, the Company has filed all reports,
schedules, forms, statements and other documents required to be filed by it
with the SEC pursuant to the reporting requirements of the Securities Exchange
Act of 1934, as amended (the “1934 Act”) (all of the foregoing types of
documents filed prior to the date hereof and all exhibits included therein and financial
statements and schedules thereto and documents incorporated by reference
therein being hereinafter referred to as the “SEC Documents”).  The Company has made available to the Buyer
or their respective representatives copies of the SEC Documents.  As of their respective dates, the SEC
Documents complied in all material respects with the requirements of the 1934
Act and the rules and regulations of the SEC promulgated thereunder applicable
to the SEC Documents, and none of the SEC Documents, at the time they were
filed with the SEC, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.  As of
their respective dates, the financial statements of the Company included in the
SEC Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto.  Such financial
statements have been prepared in accordance with generally accepted accounting
principles, consistently applied, during the periods involved (except
(i) as may be otherwise indicated in such financial statements or the
notes thereto, or (ii) in the case of unaudited interim statements, to the
extent they may exclude footnotes or may be condensed or summary statements)
and fairly present in all material respects the financial position of the
Company as of the dates thereof and the results of its operations and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments). 
Except as set forth in the financial statements included in the
Company’s SEC Documents, neither the Company nor any of its Subsidiaries has
any liabilities, contingent or otherwise, other than liabilities incurred in
the ordinary


 


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course of business subsequent to May 31, 2003, and liabilities of
the type not required under generally accepted accounting principles to be
reflected in such financial statements. 
The Company is eligible to register its securities on Form S-3.


 


(l)                                     Accountants.  The Company has no reason to believe that
its accountants, PricewaterhouseCoopers LLP, will not issue their report with
respect to the financial statements to be incorporated by reference from the
Company’s Annual Report on Form 10-K for the year ended February 28, 2003
into the Registration Statement (as defined below) and the prospectus which
forms a part thereof.  There are no
disputes between the Company and PricewaterhouseCoopers LLP that are required
to be disclosed under the 1934 Act.


 


(m)                               Material
Contracts.  The material contracts
of the Company and its Subsidiaries described in the Company’s SEC Documents
constitute all contracts material to the business and operations of the Company
and its Subsidiaries and are in full force and effect on the date hereof; and
neither the Company nor any of its Subsidiaries are in breach of or default
under any of such contracts except, in each case, where the failure of such
contracts to be in full force or effect or the breach or default of such
contract, as applicable, by the Company or any of its Subsidiaries would not
have a Material Adverse Effect.


 


(n)                                 Absence
of Material Changes.  Except as set
forth in the Company’s Disclosure Schedules, since May 31, 2003, there has
been no material adverse change in the assets, liabilities, business,
properties, operations, financial condition or results of operations of the
Company and its Subsidiaries, taken as a whole.


 


(o)                                 Conduct
of Business; Regulatory Permits. 
Neither the Company nor any of its Subsidiaries is in violation of its
charter, bylaws or other organizational documents or of any judgment, decree or
order or any statute, ordinance, rule or regulation applicable to the Company
or its Subsidiaries, and neither the Company nor any of its Subsidiaries will
conduct its business in violation of any of the foregoing, except for possible
violations which would not, individually or in the aggregate, have a Material
Adverse Effect.  The Company’s Common
Stock has been designated for quotation or listed on the Nasdaq SmallCap Market,
trading in the Common Stock has not been suspended by the SEC or the Nasdaq
SmallCap Market and the Company has received no communication, written or oral,
from the SEC or the Nasdaq SmallCap Market regarding the suspension or
delisting of the Common Stock from the Nasdaq SmallCap Market.  The Company and its Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective
businesses, except where the failure to possess such certificates,
authorizations or permits would not have, individually or in the aggregate, a
Material Adverse Effect, and neither the Company nor any such Subsidiary has
taken any action that could reasonably be expected to result in, or received
any notice of proceedings relating to, the revocation or modification of any
such certificate, authorization or permit.


 


(p)                                 Intellectual
Property.  The Company has ownership
or license or legal right to use all patent, copyright, trade secret,
trademark, customer lists, designs, manufacturing or other processes, computer
software, systems, data compilation, research results or other proprietary
rights used in the business of the Company as currently conducted or currently
proposed to be conducted


 


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(collectively, “Intellectual Property”), other than
Intellectual Property generally available on commercial terms from other
sources.


 


All material licenses or other material agreements
under which (i) the Company is granted rights in Intellectual Property, other
than Intellectual Property generally available on commercial terms from other
sources, and (ii) the Company has granted rights to others in Intellectual
Property owned or licensed by the Company, are in full force and effect and, to
the knowledge of the Company, there is no material default by the Company
thereunder.


 


The Company believes it has taken all steps required
in accordance with sound business practice and business judgment to establish
and preserve its ownership of all material copyright, trade secret and other
proprietary rights with respect to its products and technology.


 


To the Company’s knowledge, the present and currently
proposed business, activities and products of the Company do not infringe any
intellectual property of any other person, except where such infringement would
not have a material adverse effect on the Company.  The Company has not been notified that any proceeding charging
the Company with infringement of any adversely held Intellectual Property has
been filed.  To the Company’s knowledge,
there exists no unexpired patent or patent application held by any other person
which includes claims that would be infringed by or otherwise have a material
adverse effect on the Company.  To the
Company’s knowledge, the Company is not making unauthorized use of any
confidential information or trade secrets of any person.


 


(q)                                 Foreign
Corrupt Practices.  Neither the
Company, nor any of its Subsidiaries, nor any director, officer, agent,
employee or other person acting on behalf of the Company or any of its
Subsidiaries has, in the course of its actions for, or on behalf of, the
Company, used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expenses relating to political activity; made
any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or made
any unlawful bribe, rebate, payoff, influence payment, kickback or other
unlawful payment to any foreign or domestic government official or employee.


 


(r)                                    Absence
of Litigation.  There is no material
action, suit, proceeding, inquiry or investigation before or by the Nasdaq
SmallCap Market, any court, public board, government agency, self-regulatory
organization or body pending against the Company, the Common Stock or any of
the Company’s Subsidiaries or any of the Company’s or the Company’s Subsidiaries’
officers or directors in their capacities as such.


 


(s)                                  Tax
Status.  The Company and each of its
Subsidiaries has made or filed all federal and state income and all other tax
returns, reports and declarations required by any jurisdiction to which it is
subject, and has paid all taxes and other governmental assessments and charges
that are material in amount, shown or determined to be due on such returns,
reports and declarations, except those being contested in good faith and has
set aside on its books provision reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or
declarations apply.  There are no unpaid
taxes in any material amount claimed to


 


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be due by the taxing authority of any jurisdiction, and the officers of
the Company know of no basis for any such claim.


 


(t)                                    Disclosure.  The representations and warranties of the
Company contained in this Section 3 as of the date hereof and as of the
Closing Date, as qualified by the Disclosure Schedules, do not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.


 


4.                                       COVENANTS.


 


(a)                                  Best
Efforts.  Each party shall use its
best efforts timely to satisfy each of the conditions to be satisfied by it as
provided in Sections 5 and 6 of this Agreement.


 


(b)                                 Form D
and Blue Sky.  The Company agrees to
file a Form D with respect to the Shares as required under Regulation D
and to provide upon request a copy thereof to a requesting Buyer promptly after
such filing.  The Company shall, on or
before the Closing Date, take such action as the Company shall reasonably
determine is necessary in order to obtain an exemption for or to qualify the
Shares for sale to the Buyers pursuant to this Agreement under applicable
securities or “Blue Sky” laws of the states of the United States, and shall provide
evidence of any such action so taken to the Buyer on or prior to the Closing
Date.  The Company shall make all
filings and reports relating to the offer and sale of the Shares required under
applicable securities or “Blue Sky” laws of the states of the United States
following the Closing Date.


 


(c)                                  Listing.  Within three (3) business days after the
Closing Date, the Company shall file with the NASD a Notification Form for the
Listing of Additional Shares with respect to the Shares and the listing thereof
on the Nasdaq SmallCap Market, if required.


 


(d)                                 Lock-up
Agreements. Within five (5) business days after the Closing Date, each of
the Company’s named executive officers and directors (excluding Frost R.R.
Prioleau) shall have entered into agreements with Apex Capital, LLC not to sell
or otherwise transfer or dispose of any shares of the Company’s capital stock,
except as otherwise permitted by Apex Capital, LLC, until the later to occur of
(i) 30 days following the Closing Date and (ii) the effectiveness of the
registration statement registering the resale of the Shares; provided, however,
that each of such officers and directors shall be permitted to sell or
otherwise transfer or dispose of up to an aggregate of ten percent (10%) of
their holdings (determined on the date hereof) of the Company’s common stock,
without the prior consent of the Buyers. 
Such agreement shall be in substantially the form attached hereto as Exhibit
C.


 


(e)                                  Expenses;
Fees.  Each of the Company and the
Buyers shall bear its own expenses, including fees and costs of attorneys,
accountants and financial advisors, incurred in connection with the
transactions contemplated hereunder; provided, however, that the Company shall
be responsible for the payment of the Buyers’ reasonable legal fees that they
incur with respect to the negotiation, execution and delivery of the
Transaction Documents, up to a maximum aggregate amount of $10,000 for all of
the Buyers.


 


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5.                                       CONDITIONS
TO THE COMPANY’S OBLIGATION TO SELL.


 


The obligation of the
Company hereunder to issue and sell the Shares to the Buyers at the Closing is
subject to the satisfaction, at or before the Closing Date, of each of the
following conditions, provided that these conditions are for the Company’s sole
benefit and may be waived by the Company at any time in its sole discretion by
providing the Buyer with prior written notice thereof:


 


(a)                                  The
Buyers shall have executed each of the Transaction Documents to which it is a
party and delivered the same to the Company.


 


(b)                                 The
Buyers shall have delivered to the Company the Purchase Price for the Shares
being purchased by the Buyers at the Closing by wire transfer of immediately
available funds pursuant to the wire instructions provided by the Company.


 


(c)                                  The
representations and warranties of the Buyers shall be true and correct in all
material respects as of the date when made and as of the Closing Date as though
made at that time, and the Buyers shall have performed, satisfied and complied
in all material respects with the covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by the Buyers at
or prior to the Closing Date.


 


6.                                       CONDITIONS
TO THE BUYERS’ OBLIGATION TO PURCHASE.


 


The obligation of each
Buyer hereunder to purchase the Shares is subject to the satisfaction, at or
before the Closing Date, of each of the following conditions, provided that
these conditions are for each Buyer’s sole benefit and may be waived by any such
Buyer at any time in its sole discretion by providing the Company with prior
written notice thereof:


 


(a)                                  The
Company shall have executed and delivered to the Buyer each of the Transaction
Documents.


 


(b)                                 The
Buyer shall have received the opinion of the Company’s counsel dated as of the
Closing Date, in substantially the form attached hereto as Exhibit B.


 


(c)                                  The
representations and warranties of the Company shall be true and correct as of
the date when made and as of the Closing Date as though made at that time
(except for representations and warranties that reference a specific date which
shall have been true and correct in all material respects as of such date) and
the Company shall have performed, satisfied and complied in all respects with
the covenants, agreements and conditions required by the Transaction Documents
to be performed, satisfied or complied with by the Company at or prior to the
Closing Date.


 


7.                                       MISCELLANEOUS.


 


(a)                                  Governing
Law; Jurisdiction; Jury Trial.  All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of
California, without giving effect to any choice of law or conflict of law


 


10

















 


provision or rule (whether of the State of California or any other
jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of California.  Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in the County of Contra
Costa, for the adjudication of any dispute hereunder or in connection herewith
or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding,
any claim that it is not personally subject to the jurisdiction of any such
court, that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is improper.  Each party hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice
thereof.  Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner
permitted by law.  Each party hereby
irrevocably waives any right it may have, and agrees not to request, a jury
trial for the adjudication of any dispute hereunder or in connection with or
arising out of this agreement or any transaction contemplated hereby.


 


(b)                                 Counterparts.  This Agreement may be executed in two or
more identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party; provided that a facsimile signature
shall be considered due execution and shall be binding upon the signatory
thereto with the same force and effect as if the signature were an original,
not a facsimile signature.


 


(c)                                  Headings.  The headings of this Agreement are for
convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement.


 


(d)                                 Severability.  If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.


 


(e)                                  Entire
Agreement; Amendments.  This
Agreement supersedes all other prior oral or written agreements between the
Buyers, the Company, their affiliates and persons acting on their behalf with
respect to the matters discussed herein, and this Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect to
the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor any Buyer makes any representation,
warranty, covenant or undertaking with respect to such matters.  No provision of this Agreement may be
amended other than by an instrument in writing signed by the Company and the
holders of at least a majority of the Shares then outstanding (or if prior to
the Closing, the Buyers listed on the Schedule of Buyers as purchasing at
least a majority of the Shares to be purchased at the Closing), and no
provision hereof may be waived other than by an instrument in writing signed by
the party against whom enforcement is sought. No such amendment shall be
effective to the extent that it applies to less than all of the holders of the
Shares then outstanding.  The Company
has not, directly or indirectly, made any agreements with any Buyers relating
to the terms or conditions of the transactions contemplated by the Transaction
Documents except as set forth in the Transaction Documents.


 


11

















 


(f)                                    Notices.  Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered:  (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one business day after
deposit with an overnight courier service, in each case properly addressed to
the party to receive the same.  The
addresses and facsimile numbers for such communications shall be:


 


If to the Company:


 


	
  Intraware, Inc.

  
	
  25 Orinda Way

  
	
  Orinda, CA  94563

  
	
  Telephone:

  	
  (925) 253-4500

  
	
  Facsimile:

  	
  (925) 253-4599

  
	
  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

  
	
  Telephone:

  	
  (650) 493-9300

  
	
  Facsimile:

  	
  (650) 493-6811

  
	
  Attention:

  	
  Adam R. Dolinko

  



 


If to a Buyer to its address and facsimile number set
forth on the Schedule of Buyers:


 


With a copy to:


 


	
  Howard Rice Nemerovski
  Canady Falk and Rabkin, A Professional Corporation

  
	
  Three Embarcadero
  Center, Seventh Floor

  
	
  San Francisco, CA  94111-4024

  
	
  Telephone:

  	
  (415) 434-1600

  
	
  Facsimile:

  	
  (415) 217-5910

  
	
  Attention:

  	
  Ronald H. Star

  



 


Written confirmation of receipt (A) given by the
recipient of such notice, consent, waiver or other communication,
(B) mechanically or electronically generated by the sender’s facsimile
machine containing the time, date, recipient facsimile number and an image of
the first page of such transmission or (C) provided by an overnight
courier service shall be rebuttable evidence of personal service, receipt by
facsimile or receipt from an overnight courier service in accordance with
clause (i), (ii) or (iii) above, respectively.


 


(g)                                 Successors
and Assigns.  This Agreement shall
be binding upon and inure to the benefit of the parties and their respective
successors and assigns, including any purchasers of the


 


12

















 


Shares.  The Company shall not
assign this Agreement or any rights or obligations hereunder without the prior
written consent of the holders of at least a majority the Shares then
outstanding, except by merger or consolidation.  A Buyer may assign some or all of its rights hereunder without
the consent of the Company, provided, however, that any such assignment shall
not release such Buyer from its obligations hereunder unless such obligations
are assumed by such assignee and the Company has consented to such assignment
and assumption, which consent shall not be unreasonably withheld.


 


(h)                                 No
Third Party Beneficiaries.  This
Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns, and is not for the benefit of, nor
may any provision hereof be enforced by, any other person.


 


(i)                                     Survival.  The representations and warranties of the
Company and the Buyer contained in Sections 2 and 3 shall survive the Closing
for one year. The agreements set forth in this Section 7 shall survive the
termination of this agreement.


 


(j)                                     Further
Assurances.  Each party shall do and
perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates,
instruments and documents, as the other party may reasonably request in order
to carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.


 


(k)                                  No
Strict Construction.  The language
used in this Agreement will be deemed to be the language chosen by the parties
to express their mutual intent, and no rules of strict construction will be
applied against any party.


 


(l)                                     Confidentiality.  The Buyers agree that, except with the prior
written permission of the Company, they shall at all times keep confidential
and not divulge, furnish or make accessible to anyone confidential information,
knowledge or data concerning or relating to the business or financial affairs
of the Company to which such party has been or shall become privy by reason of
this Agreement, discussions or negotiations relating to this agreement.


 


(m)                               Legal
Representation.  Each Buyer
acknowledges that: (a) it has read this Agreement and the exhibits hereto; (b)
it understands that the Company has been represented in the preparation,
negotiation, and execution of this Agreement by Wilson Sonsini Goodrich &
Rosati, Professional Corporation, counsel to the Company; (c) it has either
been represented in the preparation, negotiation, and execution of this
Agreement by legal counsel of its own choice, or has chosen to forego such
representation by legal counsel after being advised to seek such legal
representation; (d) it understands the terms and consequences of this Agreement
and is fully aware of its legal and binding effect.


 


(n)              Right of
Participation.


 


(i)                                     For
so long as the Buyers, in the aggregate, hold five percent (5%) or more of the
outstanding shares of the Company’s Common Stock (with such percentage
calculated on a fully diluted basis as if all outstanding convertible
securities were converted into the


 


13

















 


Company’s Common Stock), the Buyers shall have (x) a right of
participation to purchase all or part of their pro rata portion of any New
Securities (defined as any shares of Common Stock or Preferred Stock of the
Company issued in any financing of equity or debt with equity features after
the date of this Agreement, exclusive of any financing(s) conducted during a
twelve-month period with gross proceeds of less than $750,000, shares or rights
to acquire shares issued pursuant to employee benefit plans approved by the
Company’s board or shares issued upon exercise or conversion of shares or
rights to acquire shares that are outstanding on the date of this Agreement and
shares issues in any business combination or strategic alliance the primary
purpose of which is not to raise funding) which the Company issues or sells and
(y) a right of participation to purchase up to twenty-five percent (25%) of any
New Securities at a per share price equal to the per share price at which the
Company proposes to issue such New Securities, if the per share price of such
New Securities is less than $1.55 per share (as adjusted for any stock
dividend, subdivision or split), subject in both cases to the terms and
conditions set forth below and applicable legal, regulatory and stock market
listing requirements.  Each Buyer’s pro
rata portion, for purposes of this Paragraph (n) shall equal a fraction, the
numerator of which is the number of issued and outstanding shares of common
stock held by such Buyer that were purchased hereunder or pursuant to the
exercise of rights under this Section 7(n) (assuming the exercise or
conversion of all options, warrants or convertible securities owned by such
Buyer into the Company’s Common Stock), and the denominator of which is the
total number of shares of the Company’s Common Stock then issued and
outstanding (assuming the exercise or conversion of all options, warrants or
convertible securities of the Company into the Company’s Common Stock).


 


(ii)                                  If
the Company issues or sells New Securities, it shall give each Buyer written
notice of such issuance or sale, describing the type of sale.  Each Buyer shall have thirty (30) days from
the date of receipt of such notice to agree to purchase all or part of its pro
rata portion of or 25% of such New Securities, as applicable, for the price and
upon the general terms and conditions specified in the Company’s notice by
giving written notice to the Company stating the quantity of New Securities to
be so purchased.


 


(iii)                               Notwithstanding
anything to the contrary provided for in this Section 7(n), the Company
shall not be obligated to issue any shares of Common Stock to the Buyers if:
(i) the issuance of such shares of Common Stock would exceed that number of
shares of Common Stock which the Company may issue without breaching the
Company’s obligations under the rules or regulations of the Nasdaq SmallCap
market, or the market or exchange where the Common Stock is then traded (the “Principal Market”), except that such
limitation shall not apply in the event that the Company (a) obtains the
approval of its stockholders as required by the applicable rules of the
Principal Market (or any successor rule or regulation) for issuances of Common
Stock in excess of such amount, or (b) obtains a written opinion from outside
counsel to the Company that such approval is not required, which opinion shall
be reasonably satisfactory to the holders of at least a majority of the Shares
then outstanding or (ii) Zomax Incorporated fully exercises its right of first
refusal with respect to an issuance of New Securities, pursuant to
Section 7(p) of that certain Common Stock Purchase Agreement by and
between the Company and Zomax Incorporated, dated as of August 12, 2002.


 


14

















 


IN WITNESS WHEREOF, each Buyer and the
Company have caused this Common Stock Purchase Agreement to be duly executed as
of the date first written above.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  INTRAWARE, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H. Jackson

  
	
   

  	
   

  
	
   

  	
  Name: Peter H. Jackson

  
	
   

  	
   

  
	
   

  	
  Title: CEO &
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BUYERS:

  
	
   

  	
   

  
	
   

  	
  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

  
				



 


15

















 


	
   

  	
  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

  
				



 


16

















 


	
   

  	
  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

  
				



 


17

















 


	
   

  	
  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

  



 


18

















 


Schedule I


Schedule of
Buyers


 


	
  Name/Address
  of Buyer

  	
   

  	
  Number of Shares

  	
   

  	
  Aggregate

  Purchase Price

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Permal
  U.S. Opportunities Limited

  	
   

  	
  700,000

  	
   

  	
  $

  	
  1,085,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Zaxis
  Equity Neutral, LP

  	
   

  	
  300,000

  	
   

  	
  $

  	
  465,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Zaxis
  Institutional Partners, LP

  	
   

  	
  215,000

  	
   

  	
  $

  	
  333,250.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pollat,
  Evans & Co.

  	
   

  	
  10,000

  	
   

  	
  $

  	
  15,500.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

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

  	
   

  	
  10,000

  	
   

  	
  $

  	
  15,500.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Zaxis
  Offshore Limited

  	
   

  	
  1,900,000

  	
   

  	
  $

  	
  2,945,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Zaxis
  Institutional Offshore

  	
   

  	
  65,000

  	
   

  	
  $

  	
  100,750.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Zaxis
  Partners, LP

  	
   

  	
  285,000

  	
   

  	
  $

  	
  441,750.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Barclays
  Global Investors Ltd.

  	
   

  	
  105,000

  	
   

  	
  $

  	
  162,750.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Guggenheim
  Portfolio Company XIII

  	
   

  	
  190,000

  	
   

  	
  $

  	
  294,500.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

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

  	
   

  	
  70,000

  	
   

  	
  $

  	
  108,500.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

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

  	
   

  	
  70,000

  	
   

  	
  $

  	
  108,500.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Charles
  H. Finnie

  	
   

  	
  70,000

  	
   

  	
  $

  	
  108,500.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Adam
  M. Fiore

  	
   

  	
  10,000

  	
   

  	
  $

  	
  15,500

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals

  	
   

  	
  4,000,000

  	
   

  	
  $

  	
  6,200,000.00

  	
   

  



 


19

















 


Exhibit A


 


Registration
Rights Agreement


 


 


20

















 


Exhibit
B


 


Form
of Opinion Company Counsel


 


 


21

















 


Exhibit
C


 


Form
of Lock-Up Agreement


 


 


22