AGREEMENT OR ANY RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN
CONSENT OF DIGITAL RIVER.
DIGITAL RIVER MAY ASSIGN SOME OR ALL OF ITS RIGHTS
HEREUNDER WITHOUT THE CONSENT OF THE COMPANY, PROVIDED, HOWEVER, THAT ANY SUCH
ASSIGNMENT SHALL NOT RELEASE DIGITAL RIVER FROM ITS OBLIGATIONS HEREUNDER UNLESS
SUCH OBLIGATIONS ARE ASSUMED BY SUCH ASSIGNEE AND THE COMPANY HAS CONSENTED TO
SUCH ASSIGNMENT AND ASSUMPTION, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD.
7.8
NO THIRD PARTY BENEFICIARIES.
THIS AGREEMENT IS INTENDED FOR THE
BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE PERMITTED SUCCESSORS AND
ASSIGNS, AND IS NOT FOR THE BENEFIT OF, NOR MAY ANY PROVISION HEREOF BE ENFORCED
BY, ANY OTHER PERSON.
7.9
SURVIVAL.
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND
DIGITAL RIVER CONTAINED IN SECTIONS 2 AND 3 AND THE AGREEMENTS SET FORTH THIS
ARTICLE VII SHALL SURVIVE THE CLOSING.
7.10
FURTHER ASSURANCES.
EACH PARTY SHALL DO AND PERFORM, OR CAUSE TO
BE DONE AND PERFORMED, ALL SUCH FURTHER ACTS AND THINGS, AND SHALL EXECUTE AND
DELIVER ALL SUCH OTHER AGREEMENTS, CERTIFICATES, INSTRUMENTS AND DOCUMENTS, AS
THE OTHER PARTY MAY REASONABLY REQUEST IN ORDER TO CARRY OUT THE INTENT AND
ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
7.11
NO STRICT CONSTRUCTION.
THE LANGUAGE USED IN THIS AGREEMENT WILL
BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES TO EXPRESS THEIR MUTUAL
INTENT, AND NO RULES OF STRICT CONSTRUCTION WILL BE APPLIED AGAINST ANY PARTY.
7.12
LEGAL REPRESENTATION.
DIGITAL RIVER ACKNOWLEDGES THAT: (A) IT HAS
READ THIS AGREEMENT AND THE EXHIBITS HERETO; (B) IT UNDERSTANDS THAT THE COMPANY
HAS BEEN REPRESENTED IN THE PREPARATION, NEGOTIATION, AND EXECUTION OF THIS
AGREEMENT BY WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL CORPORATION, COUNSEL
TO THE COMPANY; (C) IT HAS EITHER BEEN REPRESENTED IN THE PREPARATION,
NEGOTIATION, AND EXECUTION OF THIS AGREEMENT BY LEGAL COUNSEL OF ITS OWN CHOICE,
OR HAS CHOSEN TO FOREGO SUCH REPRESENTATION BY LEGAL COUNSEL AFTER BEING ADVISED
TO SEEK SUCH LEGAL REPRESENTATION; (D) IT UNDERSTANDS THE TERMS AND CONSEQUENCES
OF THIS AGREEMENT AND IS FULLY AWARE OF ITS LEGAL AND BINDING EFFECT.
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 Series B Preferred Stock Purchase Agreement]