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