Exhibit 10.2


 


INVESTOR RIGHTS AGREEMENT


 


This INVESTOR RIGHTS
AGREEMENT (the “Agreement”) is made as of November 9,
2005, by and between Intraware, Inc., a Delaware corporation (the “Company”) and Digital River, Inc., a Delaware
corporation (“Digital River”).


 


WHEREAS, the Company and
Digital River are parties to the Series B Preferred Stock Purchase
Agreement, dated November 9, 2005 (the “Purchase
Agreement”), pursuant to which Digital River is purchasing 1,000 shares
of the Company’ Series B Preferred Stock (the “Shares”);
and


 


WHEREAS, subject to the
terms and conditions set forth herein, the Company has agreed to grant certain
registration rights and other rights to Digital River with respect to the
Shares.


 


NOW THEREFORE, in consideration of the covenants and
promises set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


1.1           Definitions.  For the purpose of this Agreement, the
following terms shall have the meanings specified with respect thereto below:


 


(a)           “Board of
Directors” shall mean the Board of Directors of the Company.


 


(b)           “Common Stock”
shall mean the Common Stock, par value $0.0001 per share, of the Company.


 


(c)           “Eligible
Period” shall mean the period commencing on the second anniversary
of this Agreement.


 


(d)           “Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended.


 


(e)           “Register,”
“registered,” and “registration”
refers to a registration effected by preparing and filing a registration
statement or similar document in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such registration statement or
document.


 


(f)            “Registrable
Shares” shall mean the shares of Common Stock (including shares of
Common Stock issuable upon conversion of the Series B Preferred Stock)
issued or issuable to Stockholder in accordance with the terms and conditions
of the Purchase Agreement, and any securities of the Company issued as a
dividend on or other distribution with respect to, or in exchange for or
replacement of, such Common Stock.


 





















 


(g)           “Registration
Statement” shall mean any registration statement described in Sections 2.1
or 2.2 of this Agreement.


 


(a)           “Rule 144” shall mean Rule 144 as promulgated under
the Exchange Act.


 


(h)           “Rule 145”
shall mean Rule 145 as promulgated under the Securities Act.


 


(i)            “SEC”
shall mean the U.S. Securities and Exchange Commission.


 


(j)            “Securities
Act” shall mean the Securities Act of 1933, as amended.


 


(k)           “Series B
Preferred Stock” shall mean the Series B Preferred Stock,
$0.0001 par value per share, of the Company.


 


(l)            “Standstill
Agreement” shall mean that Standstill and Stock Restriction
Agreement, dated November 9, 2005, by and between the Company and Digital
River.


 


(m)          “Stockholder”
shall mean Digital River, any transferee or assignee thereof to whom Digital
River assigns its rights under the Agreement and who agrees to become bound by
the provisions of this Agreement in accordance with Section 6.5,
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 6.5.


 


(n)           “Voting Stock”
shall mean shares of the Common Stock and shares of any class of capital stock
of the Company which are then entitled to vote generally in the election of the
Board of Directors of the Company.


 


ARTICLE II


 


REGISTRATION RIGHTS


 


2.1           Demand Registration.


 


(a)           If at any time during
the Eligible Period the Stockholder requests in writing (the “Stockholder
Demand”) that the Company file a registration statement on Form S-3 (or
any successor form to Form S-3) for a public offering of shares of the
Registrable Shares the Company shall, subject to Section 2.4, file
such Registration Statement with the SEC within forty-five (45) days after
its receipt of such request.  The Company
shall use commercially reasonable efforts to cause such Registration Statement
to be declared effective as soon thereafter as practicable and keep such
registration statement effective until the Stockholder notifies the Company in
writing that the Company is no longer required to keep such Registration
Statement effective. In no event, however, shall the Company be required to (i) effect
more than two (2) registrations pursuant to this section or (ii) keep
one or more registration statements filed pursuant to this section effective
for more than an aggregate of one hundred twenty (120) days.  In the event the registration is proposed to
be part of a firm commitment underwritten public offering, the substantive
provisions of Section 2.3 shall be


 


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applicable to each
such registration initiated under this Section 2.1 and the
piggyback registration rights of Stockholder shall be applicable to a
registration effected pursuant to this Section 2.1.


 


(b)           Notwithstanding the
foregoing, the Company shall not be obligated to take any action pursuant to
subparagraph (a):


 


(i)            if the Company, within
ten (10) days of the receipt of the Stockholder Demand, gives notice
of its bona  fide intention to effect the filing of a registration
statement with the SEC within sixty (60) days of receipt of such demand
(other than a registration relating primarily to the sale of securities to
participants in a Company stock plan or employee benefit plan, a transaction
covered by Rule 145 under the Securities Act or the resale of securities
issued in such a transaction, a registration in which the only stock being
registered is Common Stock issuable upon conversion or exchange of debt
securities which are also being registered, or any registration on any form
which does not include substantially the same information as would be required
to be included in a registration statement covering the sale of the Registrable
Shares); provided, however, that if such
registration statement is not filed by the Company within 60 days of receipt of
such Stockholder Demand and declared effective by the SEC within 120 days after
the Company’s receipt of such Stockholder Demand, the Company shall be
obligated to cause such Registrable Shares of the Stockholder to be registered
in accordance with the provisions of this Section 2.1  provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective; or


 


(ii)           during the period
starting with the Company’s date of filing of, and ending on the date ninety
(90) days immediately following, the effective date of any registration
statement pertaining to securities of the Company (other than a registration of
securities in a Rule 145 transaction or with respect to an offering solely
to employees or consultants, or any other registration which is not appropriate
for the registration of Registrable Shares), which registration was either
filed as a result of the exercise by Stockholder of its rights pursuant to Section 2.1
hereof or was subject to Section 2.2 hereof.


 


2.2           Piggyback
Registration.  If at any time, the
Company proposes to register any of its Common Stock under the Securities Act
in connection with a public offering of such Common Stock solely for cash
(other than a registration relating primarily to the sale of securities to
participants in a Company stock plan of employee benefit plan, a transaction
covered by Rule 145 under the Securities Act or the resale of securities
issued in such a transaction, a registration in which the only stock being
registered is Common Stock issuable upon conversion or exchange of debt
securities which are also being registered or any registration on any form
which does not include substantially the same information as would be required
to be included in a registration statement covering the sale of the Registrable
Shares), the Company shall, at such time, give the Stockholder notice of
such registration.  Upon the
written request of the Stockholder, given within twenty (20) days
after notice has been given by the Company in accordance with Section 6.1,
the Company shall, subject to Section 2.3, cause to be registered
under the Securities Act all of the Registrable Shares that the Stockholder has
requested to be registered.


 


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2.3           Underwriting
Requirements.


 


(a)           In connection with any
underwritten public offering, the Company shall not be required to include
any of the Registrable Shares in such underwriting unless the Stockholder
accepts the terms of the underwriting as agreed upon between the Company and the
underwriters for the offering (which underwriters shall be selected by the
Company).


 


(b)           If the total amount of
securities, including Registrable Shares, requested to be included in an
underwritten public offering exceeds the amount of securities that the
underwriters determine in their sole discretion is compatible with the success
of the offering, then the Company shall be required subject to the requirements
of this Section 2.3(b) to include in the offering only that
number of such securities, including Registrable Shares, which the underwriters
determine in their sole discretion will not jeopardize the success of the
offering.  In such event, the Company may
reduce the number of Registrable Shares to be included in the offering.


 


2.4           Conditions and Limitations
on Registration Rights.  The
registration rights granted by this agreement are subject to the following
additional conditions and limitations:


 


(a)           Delays and
Suspension.  The Company may delay
the filing of, or suspend or delay the effectiveness of a Registration
Statement for up to thirty (30) days, if the Company shall furnish to the
Stockholder a certificate signed by the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its stockholders for such a registration
statement to be filed or declared effective or for an effective registration
statement not to be suspended. In such event, the Company’s obligation under
this Agreement to file a registration statement, seek effectiveness of a
registration statement or keep such registration statement effective shall be
deferred for a period not to exceed sixty (60) days from the receipt of the
request to file such registration by the Stockholder, provided
that the Company may not exercise this right of deferral for an aggregate of in
excess of seventy-five (75) days in any one year period.  If the Company suspends the effectiveness of
a Registration Statement, the Company will promptly deliver notice to the
Stockholder of such suspension and will again deliver notice to the Stockholder
when such suspension is no longer necessary. 
The duration for which the Company is required to keep a Registration
Statement effective shall be extended by an additional number of days equal to
the length of any suspension period.


 


(b)           Amended or
Supplemented Prospectus.  The
Stockholder agrees that, upon receipt of any notice from the Company described
in Section 2.4(a) hereof that suspends an effective
registration statement, the Stockholder shall forthwith discontinue disposition
of Registrable Shares until such Stockholder’s receipt of copies of a
supplemented or amended prospectus from the Company, or until it is advised in
writing by the Company that the use of the prospectus may be resumed, and has
received copies of any additional or supplemental filings which are
incorporated by reference in the prospectus. 
If so directed by the Company, the Stockholder will deliver to the Company
all copies of the prospectus covering such Registrable Shares current at the
time of receipt of such notice of suspension.


 


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2.5           Information from
Stockholder.  It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Agreement with respect to the Registrable Shares of the Stockholder that the
Stockholder shall furnish to the Company such information regarding itself, the
Registrable Shares held by it, and the intended method of disposition of such
securities, as shall be required to effect the registration of the Registrable
Shares.


 


2.6           Expenses of
Registration.  The Company shall pay
all registration, filing and qualification fees (including SEC filing fees and
the listing fees of the quotation system or any stock exchange on which the
Company securities are traded) attributable to the Registrable Shares
registered under this Agreement, and any legal, accounting or other
professional fees or expenses incurred by the Company. The Stockholder shall
pay all underwriting discounts, selling commissions and stock transfer taxes,
if any, attributable to the sale of such securities registered by the
Stockholder and any legal, accounting or other professional fees incurred by
the Stockholder.


 


2.7           Reports Under the
Exchange Act.  The Company agrees to
file with the SEC in a timely manner all reports and other documents and
information required of the Company under the Exchange Act, and take such other
actions as may be necessary to assure the availability of Form S-3 for use
in connection with the registration rights provided in this Agreement and Rule 144
for use in connection with resales of the Registrable Shares.


 


2.8           Rule 144.  In the event that all of the Stockholder’s
Registrable Shares may, under Rule 144, be resold or otherwise disposed of
in a ninety (90) day period without registration under the Securities Act,
the registration rights granted under this Agreement to such Stockholder and
the obligations of the Company hereunder (other than its obligations under Section 2.7
and Article IV) to such Stockholder, shall automatically terminate
in their entirety and be of no further force and effect whatsoever without any
further action on the part of the Company or the Stockholder.


 


2.9           Market Stand-Off.  The Stockholder agrees that, upon the request
of the underwriters managing any underwritten public offering of the Company’s
securities in connection with an effective registration statement under the
Securities Act, it will not offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, the Registrable Shares other than those included in the
registration, without the prior written consent of such underwriters, for such
period of time, not to exceed ninety (90) days (or such lesser period as
executive officers or directors of the Company are so restricted with respect
to the transfer of shares of Common Stock held by them) after the effective
date of the registration statement relating thereto, provided
that such registration was filed as a result of the exercise by Stockholder of
its rights pursuant to Section 2.1 hereof or was subject to Section 2.2
hereof.  The Stockholder agrees that, if
requested by the underwriters for such an offering, it will enter into a
lock-up agreement directly with the underwriters under substantially the same
terms and conditions and for the same time period as entered into by the
executive officers and directors of the Company.  The Stockholder agrees that the Company may
instruct its transfer agent to place stop-transfer notations in its records to
enforce the provisions of this Section 2.9.


 


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ARTICLE III


 


FURTHER OBLIGATIONS OF THE COMPANY AFTER REGISTRATION


 


3.1           Blue Sky Compliance.  The Company shall, as soon as reasonably
possible after the effectiveness of a Registration Statement, use its best
efforts to register and qualify the Registrable Shares covered by the
Registration Statement under such other securities or “blue sky” laws of such
jurisdictions as shall be reasonably requested by the Stockholder, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions
unless the Company is already subject to service in such jurisdiction and
except as may be required by the Securities Act.


 


3.2           Furnishing of
Prospectus.  With respect to a
Registration Statement filed pursuant to Sections 2.1 or 2.2, the
Company shall furnish to the Stockholder copies of any preliminary prospectus
and, as soon as reasonably possible after the effectiveness of the Registration
Statement, furnish to the Stockholder such numbers of copies of a final
prospectus in conformity with the requirements of the Securities Act, and such
other documents as the Stockholder may reasonably request, in order to
facilitate the resale or other disposition of Registrable Shares owned by it.


 


3.3           Amendments.  With respect to a Registration Statement
filed pursuant to Section 2.1 or 2.2 of this Agreement, and subject
to any events contemplated by or actions taken under Section 2.4 of
this Agreement, the Company shall prepare and file with the SEC such amendments
to the Registration Statement and amendments or supplements to the prospectus
contained therein as may be necessary to keep such Registration Statement
effective and such Registration Statement and prospectus accurate and complete
for the entire period for which the Registration Statement remains effective.


 


3.4           Notices.  The Company shall:


 


(a)           Notify the Stockholder,
promptly after it shall receive notice thereof, of the date and time when any
Registration Statement and each post-effective amendment thereto has become
effective;


 


(b)           Notify the Stockholder
promptly of any request by the SEC for the amending or supplementing of any
Registration Statement or prospectus or for additional information;


 


(c)           Notify the Stockholder,
at any time when a prospectus relating to the Registrable Shares is required to
be delivered under the Securities Act, of any event which would cause any such
prospectus or any other prospectus as then in effect to include an 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 light of the
circumstances under which they were made, not misleading, and promptly prepare
and file with the SEC, and promptly notify the Stockholder of the filing of,
such amendments or supplements to any Registration Statement or prospectus as
may be necessary to correct any such statements or omissions; and


 


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(d)           Notify Stockholder,
promptly after it shall receive notice, of the issuance of any stop order by
the SEC suspending the effectiveness of any Registration Statement or the
initiation or threatening of any proceeding for that purpose and promptly use
commercially reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such stop order should be issued.


 


ARTICLE IV


 


INDEMNIFICATION


 


4.1           Indemnification.


 


(a)           To the extent permitted
by law, the Company will indemnify the Stockholder, each of its officers,
directors and partners, legal counsel, agents and each person controlling the
Stockholder within the meaning of Section 15 of the Securities Act, with
respect to which registration, qualification or compliance has been effected
pursuant to this Agreement, and each underwriter, if any, and each person who
controls any underwriter within the meaning of Section 15 of the
Securities Act, against all expenses, claims, losses, damages and liabilities
(or actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, (commenced or threatened), arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or any violation by the Company of the Securities
Act, the Exchange Act, and any state securities laws or any rule, regulation or
qualification promulgated thereunder, and the Company will reimburse the
Stockholder, each of its officers, directors, and partners, legal counsel,
agents and each person controlling the Stockholder, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred, in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, provided, however, that the Company will not be liable in
any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission or
alleged untrue statement or omission, made in reliance upon and in conformity
with written information furnished to the Company by the Stockholder,
controlling person or underwriter expressly for use therein.


 


(b)           The foregoing indemnity
is subject to the condition that, insofar as it relates to any such untrue
statement, alleged untrue statement, omission or alleged omission made in a
preliminary prospectus on file with the SEC at the time the registration
statement becomes effective or the amended prospectus filed with the SEC
pursuant to Rule 424(b), as amended from time to time (the “Final Prospectus”), such indemnity shall not inure to the
benefit of:  (a) the Stockholder (i) if
a copy of the Final Prospectus was not furnished by the Stockholder to the
person asserting the loss, liability, claim or damage at or prior to the time
such action as required by the Securities Act and such Final Prospectus would
have cured the defect giving rise to the loss, liability, claim or damage or (ii) to
the extent that such untrue statement, alleged untrue statement, omission or
alleged


 


7





















 


omission is made
in reliance upon and in conformity with written information furnished to the
Company by the Stockholder expressly for use therein, or (b) any
underwriter (i) if a copy of the Final Prospectus was not furnished to the
person asserting the loss, liability, claim or damage at or prior to the time
such action as required by the Securities Act and the Final Prospectus would
have cured the defect giving rise to the loss, liability, claim or damage or (ii) to
the extent that such untrue statement, alleged untrue statement, omission or
alleged omission is made in reliance on and in conformity with written
information furnished to the Company by the underwriter for use therein.


 


(c)           The Stockholder will,
if Registrable Shares held by the Stockholder are included in the securities as
to which such registration, qualification or compliance is being effected,
indemnify the Company, each of its directors and officers, each underwriter, if
any, of the Company’s securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of Section 15
of the Securities Act, against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation (commenced or threatened), arising out
of or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
such registration, qualification or compliance, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and, severally, and not jointly,
will reimburse the Company, such directors, officers, persons, underwriters or
control persons for any legal and any other expenses reasonably incurred, in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by the Stockholder expressly for use therein.  Notwithstanding the foregoing, the liability
of the Stockholder under this Section 4.1 shall be limited to an
amount equal to the net proceeds received by the Stockholder from the sale of
shares in such registration.


 


(d)           Each party entitled to
indemnification under this Section 4.1 (the “Indemnified
Party”) shall give notice to the party required to provide
indemnification (the “Indemnifying Party”)
promptly after such Indemnified Party has actual knowledge of any claim as to
which indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom, provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or litigation, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld), and the
Indemnified Party may participate in such defense at such party’s expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement, unless the failure to give such notice is
prejudicial to an Indemnifying Party’s ability to defend such action, and provided further that an Indemnified Party shall have the
right to retain its own counsel, with the fees and expenses of such counsel to
be paid by the Indemnifying Party, if representation of such Indemnified Party
by the counsel retained by the Indemnifying Party would be inappropriate due to
actual or potential differing interests between such Indemnified Party and any
other party represented by such counsel in such proceeding.  No


 


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Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation.


 


(e)           If the indemnification
provided for in this Section 4.1 is held by a court of competent
jurisdiction to be unavailable to an Indemnified Party with respect to any
losses, claims, damages or liabilities referred to herein, the Indemnifying
Party, in lieu of indemnifying such Indemnified Party thereunder, shall to the
extent permitted by applicable law contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the violation(s) that resulted in such loss, claim, damage or
liability, as well as any other relevant equitable considerations.  The relative fault of the Indemnifying Party
and of the Indemnified Party shall be determined by a court of law by reference
to, among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied
by the Indemnifying Party or by the Indemnified Party and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission; provided, that
in no event shall any contribution by the Stockholder hereunder exceed the net
proceeds from the offering received by the Stockholder.


 


(f)            The obligations of the
Company and the Stockholder under this Section 4.1 shall survive
completion of any offering of Registrable Securities in a registration
statement and the termination of this Agreement.


 


ARTICLE V


 


BOARD OF DIRECTORS


 


5.1           Election of Director.  After the date of execution of a strategic
alliance agreement between Digital River and the Company and for so long as
Digital River continues to own ten percent (10%) or more of the outstanding
shares of Voting Stock, the Company will nominate and use its reasonable
efforts to have one individual designated by Digital River and reasonably
acceptable to the Board of Directors (the “Digital River Designee”)
elected to the Board of Directors (including filling any vacancy created as the
result of the resignation, removal, incapacitation or death of a Digital River
Designee with another Digital River Designee as permitted by the Company’s
certificate of incorporation and bylaws, and at each annual or special meeting
of stockholders of the Company at which the applicable class of directors are
to be elected, causing the Board of Directors to recommend to the stockholders
of the Company that such Digital River Designee be elected as a member of the
Board of Directors and soliciting proxies and voting such proxies in favor of
the election of such Digital River Designee).


 


5.2           Resignation of
Director.  In the event that Digital
River owns less than ten percent (10%) of the
outstanding shares of Voting Stock, then the Company may at such time request
the


 


9





















 


Digital River Designee to resign from the
Board of Directors, and within ten (10) days following such request, the
Digital River Designee shall resign from the Board of Directors.


 


5.3           Conflicts of
Interest.  The Digital River Designee
may be excluded from any meeting or portion thereof of the Board of Directors
or from access to any notices, minutes, consents or other materials provided to
the Board of Directors if the Board of Directors determines such exclusion is
necessary to avoid conflicts of interest or where the Board of Directors or its
chairman determines that the business interests of Digital River are
inconsistent with the business interests of the Company.


 


5.4           Indemnification.  The Company shall indemnify its directors to
the full extent permitted by law and shall maintain coverage under directors
and officers insurance in customary form and coverage levels and payable to the
Company as beneficiary.


 


5.5           Reimbursment of
Expenses.  The Company shall
reimburse the Digital River Designee for reasonable expenses incurred in
connection with the attendance of the Digital River Designee at meetings of the
Board of Directors, upon presentation of appropriate documentation therefor.


 


ARTICLE VI


 


MISCELLANEOUS


 


6.1           Notices.  All notices and other communications required
or permitted hereunder shall be made in the manner and to addresses set forth
in the Purchase Agreement.


 


6.2           Interpretation.  The words “include,” “includes” and “including”
when used herein shall be deemed in each case to be followed by the words “without
limitation.”  The headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.


 


6.3           Counterparts.  This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.


 


6.4           Entire Agreement.  This Agreement, the Purchase Agreement, the
Standstill Agreement and the documents and instruments and other agreements
among the parties hereto referenced herein: 
(a) constitute the entire agreement among the parties with respect
to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to
the subject matter hereof; and (b) are not intended to confer upon any
other person any rights or remedies hereunder.


 


6.5           Assignment.
Digital River may transfer or assign its rights and obligations hereunder
together with any Registrable Shares transferred or assigned in accordance with
the terms of the Standstill Agreement, as long as such transferee or assignee
of the Registrable Shares executes and


 


10





















 


delivers a
counterpart copy of this Agreement thereby agreeing to be bound by the terms
and provisions set forth herein.  Except
as permitted herein, any assignment of rights or delegation of duties under
this Agreement by a party without the prior written consent of the other
parties, if such consent is required hereby, shall be void ab initio.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.


 


6.6           Severability.  In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto.  The parties further agree to replace such
void or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes of such void or unenforceable provision.


 


6.7           Attorneys’ Fees.  In any action at law or suit in equity in
relation to this Agreement, the prevailing party in such action or suit shall
be entitled to receive a reasonable sum for its attorneys’ fees and all other
reasonable costs and expenses incurred in such action or suit.


 


6.8           Governing Law.  This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.


 


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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the day and year first above written.


 


	
   

  	
  INTRAWARE, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter H. Jackson

  	
   

  
	
   

  	
   

  	
  Name: Peter H. Jackson

  	
   

  
	
   

  	
   

  	
  Title: Chairman, Chief Executive Officer
  and

  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DIGITAL RIVER, INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Thomas Donnelly

  	
   

  
	
   

  	
   

  	
  Name: Thomas Donnelly

  	
   

  
	
   

  	
   

  	
  Title: Chief Financial Officer

  	
   

  



 





















 


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Investor Rights Agreement]