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.
[Remainder of this page intentionally left blank.]
11
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 Investor Rights Agreement]