Exhibit 10.2
INVESTOR RIGHTS AGREEMENT
This INVESTOR RIGHTS AGREEMENT (the "Agreement") is made as of November 9, 2005,
by and between Intraware, Inc., a Delaware corporation (the "Company") and
Digital River, Inc., a Delaware corporation ("Digital River").
WHEREAS, the Company and Digital River are parties to the Series B Preferred
Stock Purchase Agreement, dated November 9, 2005 (the "Purchase Agreement"),
pursuant to which Digital River is purchasing 1,000 shares of the Company'
Series B Preferred Stock (the "Shares"); and
WHEREAS, subject to the terms and conditions set forth herein, the Company has
agreed to grant certain registration rights and other rights to Digital River
with respect to the Shares.
NOW THEREFORE, in consideration of the covenants and promises set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1
DEFINITIONS.
FOR THE PURPOSE OF THIS AGREEMENT, THE FOLLOWING
TERMS SHALL HAVE THE MEANINGS SPECIFIED WITH RESPECT THERETO BELOW:
(A)
"BOARD OF DIRECTORS" SHALL MEAN THE BOARD OF DIRECTORS OF THE
COMPANY.
(B)
"COMMON STOCK" SHALL MEAN THE COMMON STOCK, PAR VALUE $0.0001 PER
SHARE, OF THE COMPANY.
(C)
"ELIGIBLE PERIOD" SHALL MEAN THE PERIOD COMMENCING ON THE SECOND
ANNIVERSARY OF THIS AGREEMENT.
(D)
"EXCHANGE ACT" SHALL MEAN THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
(E)
"REGISTER," "REGISTERED," AND "REGISTRATION" REFERS TO A
REGISTRATION EFFECTED BY PREPARING AND FILING A REGISTRATION STATEMENT OR
SIMILAR DOCUMENT IN COMPLIANCE WITH THE SECURITIES ACT, AND THE DECLARATION OR
ORDERING OF EFFECTIVENESS OF SUCH REGISTRATION STATEMENT OR DOCUMENT.
(F)
"REGISTRABLE SHARES" SHALL MEAN THE SHARES OF COMMON STOCK
(INCLUDING SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THE SERIES B
PREFERRED STOCK) ISSUED OR ISSUABLE TO STOCKHOLDER IN ACCORDANCE WITH THE TERMS
AND CONDITIONS OF THE PURCHASE AGREEMENT, AND ANY SECURITIES OF THE COMPANY
ISSUED AS A DIVIDEND ON OR OTHER DISTRIBUTION WITH RESPECT TO, OR IN EXCHANGE
FOR OR REPLACEMENT OF, SUCH COMMON STOCK.
(G)
"REGISTRATION STATEMENT" SHALL MEAN ANY REGISTRATION STATEMENT
DESCRIBED IN SECTIONS 2.1 OR 2.2 OF THIS AGREEMENT.
(a)
"Rule 144" shall mean Rule 144 as promulgated under the Exchange
Act.
(H)
"RULE 145" SHALL MEAN RULE 145 AS PROMULGATED UNDER THE SECURITIES
ACT.
(I)
"SEC" SHALL MEAN THE U.S. SECURITIES AND EXCHANGE COMMISSION.
(J)
"SECURITIES ACT" SHALL MEAN THE SECURITIES ACT OF 1933, AS
AMENDED.
(K)
"SERIES B PREFERRED STOCK" SHALL MEAN THE SERIES B PREFERRED
STOCK, $0.0001 PAR VALUE PER SHARE, OF THE COMPANY.
(L)
"STANDSTILL AGREEMENT" SHALL MEAN THAT STANDSTILL AND STOCK
RESTRICTION AGREEMENT, DATED NOVEMBER 9, 2005, BY AND BETWEEN THE COMPANY AND
DIGITAL RIVER.
(M)
"STOCKHOLDER" SHALL MEAN DIGITAL RIVER, ANY TRANSFEREE OR ASSIGNEE
THEREOF TO WHOM DIGITAL RIVER ASSIGNS ITS RIGHTS UNDER THE AGREEMENT AND WHO
AGREES TO BECOME BOUND BY THE PROVISIONS OF THIS AGREEMENT IN ACCORDANCE WITH
SECTION 6.5, AND ANY TRANSFEREE OR ASSIGNEE THEREOF TO WHOM A TRANSFEREE OR
ASSIGNEE ASSIGNS ITS RIGHTS UNDER THIS AGREEMENT AND WHO AGREES TO BECOME BOUND