DEEMED GIVEN (I) WHEN MADE, IF MADE BY HAND DELIVERY,
(II) UPON CONFIRMATION, IF MADE BY TELECOPIER, (III) ONE (1) BUSINESS DAY AFTER
BEING DEPOSITED WITH SUCH COURIER, IF MADE BY OVERNIGHT COURIER OR (IV) ON THE
DATE INDICATED ON THE NOTICE OF RECEIPT, IF MADE BY FIRST-CLASS MAIL, TO THE
PARTIES AS FOLLOWS:
(1)
IF TO THE HOLDER, AT THE MOST RECENT LOCATION FOR THE HOLDER
PROVIDED TO THE COMPANY;
(2)
IF TO THE COMPANY, TO:
Intraware, Inc.
25
Orinda Way
Orinda,
CA 94563
Attention:
John J. Moss, Vice President and General Counsel
9
with a copy to:
Wilson Sonsini Goodrich & Rosati, Professional Corporation
650 Page Mill Road
Palo Alto, CA
94304
Attention: John Donahue, Esq. or Adam R. Dolinko, Esq.
Telecopy No.:
(650) 493-6811
(C)
ADDITIONAL PARTIES.
THE PARTIES HERETO AGREE THAT ADDITIONAL
HOLDERS OF SECURITIES OF THE COMPANY MAY, WITH THE CONSENT ONLY OF THE COMPANY,
BE ADDED AS PARTIES TO THIS AGREEMENT WITH RESPECT TO ANY OR ALL SECURITIES OF
THE COMPANY HELD BY THEM, AND SHALL THEREUPON BE DEEMED FOR ALL PURPOSES
"HOLDERS" HEREUNDER; PROVIDED, HOWEVER, THAT FROM AND AFTER THE DATE OF THIS
AGREEMENT, THE COMPANY SHALL NOT WITHOUT THE PRIOR WRITTEN CONSENT OF HOLDERS OF
MAJORITY OF THE OUTSTANDING CONVERSION SHARES ENTER INTO ANY AGREEMENT WITH ANY
HOLDER OR PROSPECTIVE HOLDER OF ANY SECURITIES OF THE COMPANY PROVIDING FOR THE
GRANT TO SUCH HOLDER OF RIGHTS SUPERIOR TO THOSE GRANTED HEREIN.
ANY SUCH
ADDITIONAL PARTY SHALL EXECUTE A COUNTER-PART OF THIS AGREEMENT, AND UPON
EXECUTION BY SUCH ADDITIONAL PARTY AND BY THE COMPANY, SHALL BE CONSIDERED A
HOLDER FOR PURPOSES OF THIS AGREEMENT.
(D)
SUCCESSORS AND ASSIGNS.
EXCEPT AS SET FORTH IN SECTION 7 ABOVE,
THIS AGREEMENT SHALL NOT INURE TO THE BENEFIT OF ANY OTHER PERSON OTHER THAN THE
PARTIES HERETO, EXCEPT A SUCCESSOR OF THE COMPANY.
(E)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS AND BY THE PARTIES HERETO IN SEPARATE COUNTERPARTS, EACH OF WHICH
WHEN SO EXECUTED SHALL BE DEEMED TO BE ORIGINAL AND ALL OF WHICH TAKEN TOGETHER
SHALL CONSTITUTE ONE AND THE SAME AGREEMENT.
(F)
HEADINGS.
THE HEADINGS IN THIS AGREEMENT ARE FOR CONVENIENCE OF
REFERENCE ONLY AND SHALL NOT LIMIT OR OTHERWISE AFFECT THE MEANING HEREOF.
(G)
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(H)
JURISDICTION.
ANY ACTION OR PROCEEDING SEEKING TO ENFORCE ANY
PROVISION OF, OR BASED ON ANY RIGHT ARISING OUT OF, THIS AGREEMENT MAY BE
BROUGHT AGAINST ANY OF THE PARTIES IN THE COURTS OF THE STATE OF CALIFORNIA OR,
IF IT HAS OR CAN ACQUIRE JURISDICTION, IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF CALIFORNIA, AND EACH OF THE PARTIES CONSENTS TO THE
JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS) IN ANY
SUCH ACTION OR PROCEEDING AND WAIVES ANY OBJECTION TO VENUE LAID THEREIN.
PROCESS IN ANY ACTION OR PROCEEDING