Exhibit 10.2
COMMON STOCK PURCHASE AGREEMENT
COMMON STOCK PURCHASE AGREEMENT (the "Agreement"), dated as of August 12, 2002,
by and between Intraware, Inc., a Delaware corporation (the "Company"), and
Zomax Incorporated, a Minnesota corporation (the "Buyer").
WHEREAS:
A.
The Company and the Buyer have executed that certain Strategic
Alliance Agreement dated August 12, 2002 for their cooperative provision to
customers of electronic software delivery and management services.
B.
The Company and the Buyer 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 Buyer wishes to purchase, upon the terms and conditions stated
in this Agreement, 6,097,561 shares of Common Stock of the Company (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 the 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 THE BUYER AND THE BUYER AGREES TO PURCHASE FROM THE COMPANY THE SHARES
(THE "CLOSING").
THE PURCHASE PRICE (THE "PURCHASE PRICE") OF EACH SHARE IS
$0.82 AND THE AGGREGATE PURCHASE PRICE AT THE CLOSING IS $5,000,000.00.
(B)
CLOSING DATE.
THE DATE AND TIME OF THE CLOSING (THE "CLOSING
DATE") SHALL BE 5:00 A.M. PACIFIC TIME, ON AUGUST 12, 2002, SUBJECT TO
SATISFACTION OR WAIVER OF THE CONDITIONS TO THE CLOSING SET FORTH IN SECTIONS 5
AND 6 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) THE BUYER SHALL PAY THE
AGGREGATE PURCHASE PRICE TO THE COMPANY FOR THE SHARES TO BE ISSUED AND SOLD TO
THE BUYER 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 THE STOCK
CERTIFICATE (THE "STOCK CERTIFICATE") REPRESENTING THE NUMBER OF THE SHARES.
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2.
BUYER'S REPRESENTATIONS AND WARRANTIES.
The Buyer represents and warrants that:
(A)
INVESTMENT PURPOSE.
THE BUYER 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,