Exhibit 10.1
SERIES B PREFERRED STOCK PURCHASE AGREEMENT
This SERIES B PREFERRED STOCK PURCHASE 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 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 U.S.
Securities and Exchange Commission (the "SEC") under the Securities Act of 1933,
as amended (the "Securities Act");
WHEREAS, Digital River wishes to purchase, upon the terms and conditions stated
in this Agreement, 1,000 shares of Series B Preferred Stock, par value $0.0001
per share, of the Company (the "Shares") which are convertible into shares of
Common Stock of the Company (the "Conversion Shares"); and
WHEREAS, contemporaneously with the execution and delivery of this Agreement,
the parties hereto are executing and delivering an Investor Rights Agreement
substantially in the form attached hereto as Exhibit A (the "Investor Rights
Agreement") and a Standstill and Stock Restriction Agreement substantially in
the form attached hereto as Exhibit B (the "Standstill 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
PURCHASE AND SALE OF SHARES
1.1
PURCHASE OF THE SHARES.
SUBJECT TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT, DIGITAL RIVER AGREES TO PURCHASE AT THE CLOSING (AS DEFINED
BELOW) AND THE COMPANY AGREES TO SELL AND ISSUE TO DIGITAL RIVER, THE SHARES, AT
A PURCHASE PRICE OF $6,000.00 PER SHARE, FOR AN AGGREGATE PURCHASE PRICE OF
$6,000,000.00 (THE "PURCHASE PRICE").
1.2
CLOSING DATE.
THE PURCHASE AND SALE OF THE SHARES SHALL TAKE
PLACE AT THE OFFICES OF WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL
CORPORATION, 650 PAGE MILL ROAD, PALO ALTO, CALIFORNIA, AT 10:00 A.M. PACIFIC
TIME, ON NOVEMBER 10, 2005, OR AT SUCH OTHER TIME AND PLACE AS THE COMPANY AND
DIGITAL RIVER SHALL AGREE UPON, ORALLY OR IN WRITING (THE "CLOSING").
THE DATE
AND TIME OF THE CLOSING IS HEREAFTER REFERRED TO AS THE "CLOSING DATE."
1.3
FORM OF PAYMENT.
ON THE CLOSING DATE, (I) DIGITAL RIVER SHALL PAY
THE AGGREGATE PURCHASE PRICE TO THE COMPANY FOR THE SHARES TO BE ISSUED AND SOLD
TO DIGITAL RIVER AT THE CLOSING, 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 A STOCK
CERTIFICATES REPRESENTING SUCH NUMBER OF THE SHARES (THE "STOCK CERTIFICATE").
ARTICLE II
DIGITAL RIVER'S REPRESENTATIONS AND WARRANTIES
Digital River represents and warrants to the Company that:
2.1
INVESTMENT PURPOSE.
DIGITAL RIVER 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