Exhibit
10.3


 


STANDSTILL AND STOCK RESTRICTION
AGREEMENT


 


This STANDSTILL AND STOCK RESTRICTION 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 have executed a
Preferred Stock Purchase Agreement, dated November 9, 2005, by and among
the Company and Digital River (the “Purchase Agreement)
pursuant to which Digital River is purchasing 1,000 shares of the Company’s Series B
Preferred Stock;


 


WHEREAS, the Company and Digital River desire, in
connection with the execution of the Purchase Agreement, to make certain
covenants and agreements with one another pursuant to this Agreement;


 


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)           “13D Group”
means any group of persons formed for the purpose of acquiring, holding, voting
or disposing of Voting Stock which would be required under Section 13(d) of
the Exchange Act, and the rules and regulations promulgated thereunder, to
file a statement on Schedule 13D pursuant to Rule 13d-1(a) or a Schedule 13G
pursuant to Rule 13d-1(c) with the SEC as a “person” within the
meaning of Section 13(d)(3) of the Exchange Act.


 


(b)           “Affiliate”
shall have the meaning set forth in Rule 12b-2 of the rules and
regulations promulgated under the Exchange Act.


 


(c)           “Beneficially Own,”
“Beneficially Owned,” or “Beneficial Ownership” shall have the meaning set forth in Rule 13d-3
of the rules and regulations promulgated under the Exchange Act.


 


(d)           “Board Approval”
shall mean the affirmative vote or written consent of a majority of the Board
of Directors of the Company duly obtained in accordance with the applicable
provisions of the Company’s bylaws and applicable law.


 


(e)           “Change of Control of the
Company” shall mean any of the following: (A) a merger,
consolidation or other business combination or transaction to which the Company
is a party if the stockholders of the Company immediately prior to the
effective date of such merger, consolidation or other business combination or
transaction, as a result of such share


 





















 


ownership, have Beneficial Ownership of voting
securities representing less than fifty percent (50%) of the Total Current
Voting Power of the surviving or successor entity (or its ultimate parent
company) following such merger, consolidation or other business combination or
transaction; (B) an acquisition by any person, entity or 13D Group of
direct or indirect Beneficial Ownership of Voting Stock of the Company
representing fifty percent (50%) or more of the Total Current Voting Power of
the Company; (C) a sale of all or substantially all the assets of the
Company; (D) a liquidation or dissolution of the Company; or (E) during
any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Company (together with any new
directors whose election by such Board of Directors or whose nomination for
election by the shareholders of the Company was approved by a vote of a
majority of the directors of the Company then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved, other than a director designated by a
person who has entered into an agreement with the Company to effect a
transaction described in the preceding clauses) cease for any reason to
constitute a majority of the Board of Directors of the Company then in office.


 


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


 


(g)           “Control” or “Controlled by” shall have the meaning set forth in Rule 12b-2
of the rules and regulations promulgated under the Exchange Act.


 


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


 


(i)            “Fair Market Value”
means, as of any date of determination, (A) in the case of any security,
the average of the closing sale prices of such security during the 10 trading
days immediately preceding such date of determination on the principal U.S. or
foreign securities exchange on which such security is listed or, if such
security is not listed or primarily traded on any such exchange, the average of
the closing sale prices or the closing bid quotations of such security during
the 10-day period preceding such date of determination on Nasdaq or any
comparable system then in use or, if no such quotations are available, the fair
market value of such security as of such date of determination as determined
pursuant to clause (B) below, and (B) in the case of property other
than cash or any security the Fair Market Value of which can be determined
pursuant to the foregoing clause (A), the fair market value of such property on
such date of determination as determined in good faith by a majority of
Independent Directors; provided, however,
if Digital River disputes such determination, then the fair market value shall
be as determined by two Investment Banks, with one Investment Bank to be
selected by each of the Company and Digital River for such purpose.  Each such Investment Bank shall determine the
fair market value and shall deliver its written valuation to the Company and
Digital River within thirty (30) days after selection.  In the event that such Investment Banks do
not agree on the fair market value, the fair market value shall be the average
of the two valuations, except that if the higher of the two valuations is
greater than twice the lower valuation, the Investment Banks shall select
another Investment Bank of similar qualifications who shall determine the fair
market value independently of such selection in accordance with the procedures
specified in the foregoing sentence.  None of the Company, Digital River or the
initial Investment Banks shall provide the third Investment Bank with
information regarding the valuation of the initial


 


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Investment Banks. 
The valuation of the third Investment Bank shall be arithmetically
averaged with the two prior valuations and the valuation farthest from the
average of the three valuations shall be disregarded.  The fair market value shall be the average of
the two remaining valuations.  The
Company and Digital River shall each pay one-half of the expense of the
valuation.


 


(j)            “Digital River Shares”
shall mean the shares of Series B Preferred Stock of the Company issued to
Digital River pursuant to the Purchase Agreement (including shares of Common
Stock issuable upon conversion of the Series B Preferred Stock).


 


(k)           “Independent Director”
shall mean a director of the Company who qualifies as an independent
director under the listing standards of Nasdaq, excluding any director
nominated by Digital River pursuant to the Investor Rights Agreement.


 


(l)            “Investment Bank”
means any nationally recognized investment-banking firm that has not had any
significant relationship with the Company or Digital River or their respective
Affiliates in the last twelve (12) months.


 


(m)          “Investor Rights Agreement”
shall mean the Investor Rights Agreement dated as of November 9, 2005,
between the Company and Digital River.


 


(n)           “Nasdaq” shall
mean The Nasdaq Stock Market.


 


(o)           “Non-Voting Convertible
Securities” shall mean any securities of the Company which are
convertible into, exchangeable for or otherwise exercisable to acquire Voting
Stock of the Company, including convertible securities, warrants, rights or
options to purchase Voting Stock of the Company.


 


(p)           “person” shall
mean an individual, corporation, partnership, limited liability company,
association, trust, or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.


 


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


 


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


 


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


 


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


 


(u)           “Shares” shall
mean any shares of Voting Stock that are then Beneficially Owned by Digital
River.


 


(v)           “Standstill Limit”
shall mean fifteen percent (15%) of the Total Current Voting Power of the
Company.


 


(w)          “Standstill Period”
shall mean the period beginning on the date hereof and ending on the occurrence
of a Standstill Termination Event, except for any period beginning


 


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on the date of a Standstill Suspension Event and
ending on the date of a Standstill Reinstatement Event.


 


(x)            “Standstill Reinstatement
Event” shall mean either (A) with respect to a Suspending
Acquisition, such person, entity or 13D Group directly or indirectly Beneficially
Owning Voting Stock of the Company representing less than fifteen percent (15%)
of the Total Current Voting Power of the Company; (B) with respect to a
Suspending Merger, the withdrawal or termination (including, without
limitation, as a result of a temporary restraining order or an injunction
issued by a governmental entity) of such merger, consolidation or other
business combination or transaction or a sale of all or substantially all the
assets of the Company; or (C) with respect to a Tender Offer Commencement,
the withdrawal or termination (including, without limitation, as a result of a
temporary restraining order or an injunction issued by a governmental entity)
by such person, entity or 13D Group of the Third Party Tender Offer.


 


(y)           “Standstill Suspension
Event” shall mean either: (A) a Suspending Acquistion; (B) a
Suspending Merger; or (C) a Tender Offer Commencement.


 


(z)            “Standstill Termination
Event” shall mean the earliest to occur of the following: (A) Digital
River Beneficially Owning less than ten percent (10%) of the Total Current
Voting Power of the Company; provided, however,
that such event occurs or is continuing more than one (1) year following
the date of this Agreement; or (B) a Change of Control of the Company
(other than a Change of Control of the Company involving Digital River).


 


(aa)         “Suspending Acquisition”
shall mean an acquisition by any person, entity or 13D Group of direct or
indirect Beneficial Ownership of Voting Stock of the Company representing more
than fifteen percent (15%) but less than fifty percent (50%) of the Total
Current Voting Power of the Company.


 


(bb)         “Suspending Merger”
shall mean the entry into by the Company of any merger, consolidation or other
business combination or transaction with any person, entity or 13D Group or a
sale of all or substantially all the assets of the Company to any person,
entity or 13D Group pursuant to which the Common Stock of the Company would be
converted into cash or securities of another person, entity or 13D Group or which
would result in all or substantially all of the Company’s assets being sold to
another person, entity or 13D Group.


 


(cc)         “Tender Offer Commencement”
shall mean the announcement or commencement by any person, entity or 13D Group
of a Third Party Tender Offer.


 


(dd)         “Third Party Tender Offer”
shall mean a bona fide public tender offer subject to the provisions of
Regulation 14D when first commenced within the meaning of Rule 14d-2(a) of
the rules and regulations under the Exchange Act, by a person, entity or
13D Group (which is not made by and does not include the Company or Digital
River) to purchase or exchange for cash or other consideration any Voting
Stock, which, if successful, would result in such person, entity or 13D Group
owning, when combined with any other Voting Stock owned by such person, entity
or 13D Group, fifteen percent (15%) or more of the Total Current Voting Power
of the Company.


 


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(ee)         “Total Current Voting Power”
shall mean, with respect to any entity, at the time of determination of Total
Current Voting Power, the total number of votes which may be cast in the
election of members of the board of directors of the corporation if all
securities entitled to vote in the election of such directors are present and
voted (or, in the event the entity is not a corporation, the governing members,
board or other similar body of such entity).


 


(ff)           “Transfer” shall
mean any sale, assignment, transfer, lease, pledge, conveyance,
hypothecation or other transfer or disposition of such share, whether or not
for value and whether voluntary or involuntary.


 


(gg)         “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


 


STANDSTILL
OBLIGATIONS, TRANSFER RESTRICTIONS

AND OTHER OBLIGATIONS


 


2.1           Digital
River’s Standstill Obligations. 
Digital River agrees that, during the Standstill Period:


 


(a)  Neither it nor any of its Affiliates shall,
directly or indirectly, acquire or Beneficially Own Voting Stock or authorize
or make a tender offer, exchange offer or other offer to acquire Voting Stock,
if the effect of such acquisition would be to increase the percentage of Total
Current Voting Power of the Company represented by all Shares Beneficially
Owned by Digital River and its Affiliates to more than the Standstill
Limit.  Digital River shall not be deemed
to have violated its respective covenants under this Section 2.1 by
virtue of any increase in the aggregate percentage of the Total Current Voting
Power of the Company represented by Shares Beneficially Owned by Digital River
or its Affiliates if such increase is the result of a recapitalization of the Company,
a repurchase of securities by the Company or other actions taken by the Company
or any of the Company’s Affiliates that have the effect of reducing the Total
Current Voting Power of the Company. 
Notwithstanding the foregoing, if the Shares Beneficially Owned by
Digital River and its Affiliates is ever less than the Standstill Limit due to
the issuance and sale by the Company of its Voting Stock or for any reason
other than by Digital River’s own action, Digital River may, at any time,
purchase from third parties in normal broker transactions an amount of Common
Stock sufficient to raise Digital River’s relative ownership of the Company’s
capital stock to the Standstill Limit, subject to applicable laws and any
applicable trading restrictions or black-out periods under the Company’s
insider trading policies.


 


(b)  It shall promptly notify the Company if its
aggregate Beneficial Ownership of Voting Stock exceeds the aggregate Beneficial
Ownership of Voting Stock specified in Digital River’s most recent prior notice
to the Company under this Section 2.1 (or if no such notice has yet
been given, the aggregate Beneficial Ownership of Voting Stock on the date of
this Agreement) by more than 1% of the outstanding Voting Stock.  Such notice shall specify the amount of
Voting Stock Beneficially Owned by Digital River as of the date of the
notice.  Notwithstanding any provision of
this Section 2.1(b) to the contrary, the provisions of this


 


5





















 


Section 2.1(b) requiring notice to the Company may be satisfied by the
delivery by Digital River to the Company of an amendment to any Schedule 13D
filed by Digital River with respect to the Shares.


 


(c)  It shall not, without first obtaining Board
Approval, solicit proxies with respect to any Voting Stock or make any
recommendation regarding the voting of any Voting Stock.


 


(d)  It shall not, without first obtaining Board
Approval, (i) deposit any Voting Stock or Non-Voting Convertible
Securities in a voting trust or, except as otherwise provided or contemplated
herein, subject any Voting Stock or Non-Voting Convertible Securities to any
arrangement or agreement with any third party with respect to the voting of
such Voting Stock or (ii) join a 13D Group, partnership, limited partnership,
syndicate or other group, or otherwise act in concert with any third person for
the purpose of acquiring, holding, voting or disposing of Voting Stock or Non-Voting
Convertible Securities.


 


2.2           The
Company’s Right of First Refusal


 


(a)  Digital River’s right to Transfer (other than a Transfer to any Affiliate of such holder or a
Transfer to the Company pursuant to a redemption or otherwise) the shares shall be subject to the Company’s right of first
refusal to purchase such Shares on the following terms and conditions:


 


(i)            Digital River
shall give prior notice (the “Transfer Notice”)
to the Company in writing of any intention to Transfer Shares, specifying the
name of the proposed purchaser or transferee, the number of Shares proposed to
be the subject of such Transfer, the proposed price therefor and the other
material terms upon which such disposition is proposed to be made.


 


(ii)           The Company
shall have the right, exercisable by written notice given by the Company to
Digital River within ten (10) business days after receipt of such Transfer
Notice (the “Response Notice”), to
purchase all or any portion of the Shares specified in such Transfer Notice for
cash at the price per share specified in the Transfer Notice or, if
consideration other than cash is specified in the Transfer Notice, in an amount
equal to the Fair Market Value of such non-cash consideration.  Such right shall not be conditional upon the
Company having sufficient financing, at the time the right arises, to purchase
the Shares; provided, however, in any event the
Company is required to obtain such financing within the time period set forth
in Section 2.2(a)(iii).


 


(iii)          If the Company
exercises its right of first refusal hereunder, the closing of the purchase of
the Shares with respect to which such right has been exercised shall take place
within sixty (60) calendar days after the Company gives the Response Notice to
Digital River or, if later, within five (5) business days of the
determination of the Fair Market Value of any non-cash consideration.  Subject to Section 2.2(a)(iv),
upon exercise of its right of first refusal, the Company and Digital River
shall be legally obligated to consummate the purchase and sale contemplated
thereby and shall use their reasonable best efforts to secure any approvals
required in connection therewith.


 


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(iv)         If the Company
does not exercise its right of first refusal hereunder within the time
specified for such exercise in Section 2.2(a)(ii) above or
close within the time period specified in Section 2.2(a)(iii) with
respect to all of the Shares specified in such Transfer Notice, Digital River
shall be free, during the period of ninety (90) calendar days following the
expiration of such time for exercise or close, as the case may be, to Transfer
or tender for Transfer those Shares specified in such Transfer Notice with
respect to which the Company has not exercised its first refusal rights to the
proposed purchaser or transferee specified in such Transfer Notice, and on
terms not materially less favorable to Digital River than the terms specified
in such Transfer Notice.


 


(b)  The Company may assign its right of first
refusal under this Section 2.2 to any other person or persons in
connection with any proposed Transfer.


 


2.3           Digital
River’s Other Obligations


 


(a)  Quorum.  So long as Digital River Beneficially Owns at
least one percent (1%) of the Total Current Voting Power of the Company,
Digital River, as the holder of Shares, shall be present, in person or by
proxy, at all meetings of stockholders of the Company so that all shares of
Voting Stock held by Digital River may be counted for purposes of determining
the presence of a quorum at such meetings.


 


(b)  No Exercise of Dissenter’s Rights.  Until the fifth (5th) anniversary
of the date of this Agreement, at any time that Digital River Beneficially Owns
at least one percent (1%) of the Total Current Voting Power of the Company,
Digital River agrees not to exercise any dissenter’s rights, if any, that it
may have under applicable law in connection with any merger, consolidation,
reorganization or other transaction that is approved by the Company’s Board of
Directors, regardless of the manner in which Digital River may have voted or
cast Shares of Voting Stock with respect to such transaction.


 


ARTICLE III


 


MISCELLANEOUS


 


3.1           Governing
Law; Jurisdiction and Venue


 


(a)  This Agreement is to be construed in
accordance with and governed by the internal laws of the State of Delaware
without giving effect to any choice of law rule that would cause the
application of the laws of any jurisdiction other than the internal laws of the
State of Delaware to the rights and duties of the parties.


 


(b)  Any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this
Agreement may be brought or otherwise commenced in any state or federal court
located in the State of Delaware.  Each
party to this Agreement:


 


(i)            expressly and
irrevocably consents and submits to the jurisdiction of each state and federal
court located in the State of Delaware (and each appellate court located in the
State of Delaware) in connection with any such legal proceeding, including to
enforce any settlement, order or award;


 


7





















 


(ii)           agrees that
each state and federal court located in the State of Delaware shall be deemed
to be a convenient forum; and


 


(iii)          waives and
agrees not to assert (by way of motion, as a defense or otherwise), in any such
legal proceeding commenced in any state or federal court located in the State
of Delaware, any claim that such party is not subject personally to the
jurisdiction of such court, that such legal proceeding has been brought in an
inconvenient forum, that the venue of such proceeding is improper or that this
Agreement or the subject matter hereof or thereof may not be enforced in or by
such court.


 


(c)  Each party hereto agrees to the entry of an
order to enforce any resolution, settlement, order or award made pursuant to
this Section 3.1 by the state and federal courts located in the
State of Delaware and in connection therewith hereby waives, and agrees not to
assert by way of motion, as a defense, or otherwise, any claim that such
resolution, settlement, order or award is inconsistent with or violative of the
laws or public policy of the laws of the State of Delaware or any other
jurisdiction.


 


3.2           Assignment.  No
party may assign either this Agreement or any of its rights, interests, or
obligations hereunder without the prior written approval of the other
parties.  Except as provided herein, any
assignment of rights or delegation of duties under this Agreement by a party
without the prior written consent of other parties shall be void ab
initio.  Subject to the preceding two
sentences, this Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted assigns.


 


3.3           Entire
Agreement; No Third Party Beneficiaries; Amendment.  This Agreement, the Purchase Agreement, the
Investor Rights Agreement and the agreements referred to herein and therein
constitute the full and entire understanding and agreement between the parties
with regard to the subject hereof, and no party shall be liable or bound to any
other party in any manner by any warranties, representations or covenants
except as specifically set forth herein and in the agreements referred to
herein.  This Agreement is not intended
to confer upon any other person any rights or remedies hereunder.  Except as expressly provided herein, neither
this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.


 


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


 


3.5           Delays
or Omissions.  Except as expressly
provided herein, no delay or omission to exercise any right, power or remedy
accruing to a party under this Agreement shall impair any such right, power or
remedy nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring.


 


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3.6           Expenses.
 Except as otherwise specifically
provided herein, the Company and Digital River shall bear their own expenses
incurred with respect to this Agreement and the transactions contemplated
hereby.


 


3.7           Specific
Performance.  The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific intent or were otherwise breached. 
It is accordingly agreed that the parties shall not be entitled to an
injunction or injunctions, without bond, to prevent or cure breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof, this being in addition to any other remedy to which they may
be entitled by law or equity, and any party sued for breach of this Agreement
expressly waives any defense that a remedy in damages would be adequate.


 


3.8           Further
Assurances.  The parties hereto 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 or documents as any other party may reasonably request from time to
time in order to carry out the intent and purposes of this Agreement and the
consummation of the transactions contemplated hereby.  Neither the Company nor Digital River shall
voluntarily undertake any course of action inconsistent with satisfaction of
the requirements applicable to them set forth in this Agreement and each shall
promptly do all such acts and take all such measures as may be appropriate to
enable them to perform as early as practicable the obligations herein and
therein required to be performed by them.


 


3.9           Facsimile;
Counterparts.  This Agreement may be
executed by facsimile and in any number of counterparts, each of which shall be
enforceable against the parties actually executing such counterparts, and all
of which together shall constitute one instrument.


 


3.10         Severability.  In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided, that no such severability shall be
effective if it materially changes the economic impact of this Agreement on any
party.


 


3.11         Interpretation.


 


(a)  The various section headings are
inserted for purposes of reference only and shall not affect the meaning or
interpretation of this Agreement or any provision hereof. The definitions
contained in this Agreement are applicable to the singular as well as the
plural forms of such terms and to the masculine as well as to the feminine and
neuter genders of such terms.


 


(b)  Each party hereto acknowledges that it has
been represented by competent counsel and participated in the drafting of this
Agreement, and agrees that any applicable rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in connection with the construction or interpretation of this
Agreement.


 


(c)  When a reference is made in this Agreement to
a Section, Exhibit or Schedule, such reference shall be to a Section of,
Exhibit to or Schedule to this Agreement unless otherwise indicated.


 


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(d)  Any reference to a statute, rule, regulation,
form or schedule under either the Exchange Act or the Securities Act
contained in this Agreement shall be deemed to include any to successor or
replacement statute, rule, regulation, form or schedule.


 


3.12         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.


 


 


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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

  	
   

  
					



 





















 


[Signature Page to Standstill and Stock
Restriction Agreement]