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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 25, 1999
REGISTRATION NO. 333-69261
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 5
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INTRAWARE, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 7375 68-0389976
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Classification Code Number) Identification
incorporation or organization) Number)
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25 ORINDA WAY
ORINDA, CA 94563
(925) 253-4500
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
--------------------------
PETER JACKSON
CHIEF EXECUTIVE OFFICER
25 ORINDA WAY
ORINDA, CA 94563
(925) 253-4500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------------
COPIES TO:
DAVID J. SEGRE STEVEN M. SPURLOCK
ADAM R. DOLINKO WILLIAM A. HOLMES
LINDA M. CUNY KEVIN A. LUCAS
DAVID R. BOWMAN Gunderson Dettmer Stough
Wilson Sonsini Goodrich & Rosati Villeneuve Franklin & Hachigian, LLP
Professional Corporation 155 Constitution Drive
650 Page Mill Road Menlo Park, California 94025
Palo Alto, California 94304 (650) 321-2400
(650) 493-9300
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
--------------------------
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. / /
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL HEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(A),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by Intraware in connection with
the sale of common stock being registered. All amounts are estimates except the
SEC registration fee and the NASD filing fee.
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SEC registration fee.......................................... $ 19,182
NASD filing fee............................................... 7,400
Nasdaq National Market listing fee............................ 150,000
Printing and engraving costs.................................. 250,000
Legal fees and expenses....................................... 350,000
Accounting fees and expenses.................................. 175,000
Blue Sky fees and expenses.................................... 10,000
Transfer Agent and Registrar fees............................. 10,000
Miscellaneous expenses........................................ 28,418
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Total......................................................... $ 1,000,000
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ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits a corporation to
include in its charter documents, and in agreements between the corporation and
its directors and officers, provisions expanding the scope of indemnification
beyond that specifically provided by the current law.
Article IX of the Registrant's Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware law.
Article VI of the Registrant's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the Registrant if such
person acted in good faith and in a manner reasonably believed to be in and not
opposed to the best interest of the Registrant, and, with respect to any
criminal action or proceeding, the indemnified party had no reason to believe
his or her conduct was unlawful.
The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the Registrant's Bylaws, and intends to enter into indemnification agreements
with any new directors and executive officers in the future.
The Underwriting Agreement (Exhibit 1.1 hereto) provides for indemnification
by the Underwriters of the registrant and its executive officers and directors,
and by the registrant of the underwriters for certain liabilities, including
liabilities arising under the Securities Act, in connection with matters
specifically provided in writing by the Underwriters for inclusion in the
Registration Statement.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
During the past three years, the Registrant has issued unregistered
securities to a limited number of persons as described below:
(a) In September 1996, Registrant issued and sold an aggregate of
5,250,000 shares of common stock to the founding officers and directors of
the Registrant for an aggregate purchase price of $26,250.
II-1
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(b) In September 1996, Registrant issued and sold an aggregate of
1,500,000 shares of Series A preferred stock (convertible into 3,000,000
shares of common stock upon consummation of the two-for-one stock split) to
21 investors for $1.00 per share or an aggregate of $1,500,000. The
foregoing purchases and sales were exempt from registration under the
Securities Act pursuant to Section 4(2) thereof on the basis that the
transaction did not involve a public offering.
(c) In June 1997 and July 1997, Registrant issued and sold an aggregate
of 1,650,999 shares of Series B preferred stock (convertible into 3,301,998
shares of common stock upon consummation of the two-for-one stock split) to
a total of 26 investors for $1.60 per share, or an aggregate of $2,641,600.
The foregoing purchases and sales were exempt from registration under the
Securities Act pursuant to Section 4(2) thereof on the basis that the
transaction did not involve a public offering.
(d) In December 1997, Registrant issued and sold an aggregate of 666,667
shares of Series C preferred stock, (convertible into 1,333,334 shares of
common stock upon consummation of the two-for-one stock split) to Entities
Associated with Kleiner Perkins Caufield & Byers for $2.25 per share, or an
aggregate of $1,500,000.75. The foregoing purchases and sales were exempt
from registration under the Securities Act pursuant to Section 4(2) thereof
on the basis that the transaction did not involve a public offering.
(e) In April 1998 Registrant issued and sold an aggregate of 2,122,149
shares of Series D preferred stock (convertible into 4,244,298 shares of
common stock upon consummation of the two-for-one stock split) for $5.35 per
share, or an aggregate of $11,300,003. The foregoing purchases and sales
were exempt from registration under the Securities Act pursuant to Section
4(2) thereof on the basis that the transaction did not involve a public
offering.
(f) As of November 30, 1998, an aggregate of 1,679,550 shares of common
stock had been issued upon exercise of options under the Registrant's 1996
Stock Option Plan. Except as indicated above, none of the foregoing
transactions involved any underwriters, underwriting discounts or
commissions, or any public offering, and the Registrant believes that each
transaction was exempt from the registration requirements of the Securities
Act by virtue of Section 4(2) thereof, Regulation D promulgated thereunder
or Rule 701 pursuant to compensatory benefit plans and contracts relating to
compensation as provided under such Rule 701. The recipients in such
transactions represented their intention to acquire the securities for
investment only and not with a view to or for sale in connection with any
distribution thereof, and appropriate legends were affixed to the share
certificates and instruments issued in such transactions. All recipients had
adequate access, through their relationships with the Registrant, to
information about the Registrant.
II-2
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
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EXHIBIT
NUMBER
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1.1** Form of Underwriting Agreement.
3.1** Restated Certificate of Incorporation of the Registrant to be in effect after the closing of the
offering made under this Registration Statement.
3.2** Restated Bylaws of the Registrant to be in effect after the closing of the offering made under this
Registration Statement.
4.1** Specimen Common Stock Certificate.
5.1** Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1** Form of Indemnification Agreement between the Registrant and each of its directors and officers.
10.2** 1996 Stock Option Plan (as amended on December 17, 1998) and form of agreements thereunder.
10.3** 1998 Employee Stock Purchase Plan and form of agreements thereunder.
10.4** 1998 Director Option Plan and form of agreements thereunder.
10.5** Form of Registration and Information Rights Agreement.
10.6** Loan Agreement entered into as of July 29, 1998 between the Registrant and Imperial Bank and related
General Security Agreement and Collateral Assignment as Collateral, Patent Mortgage and Security
Agreement.
10.7** Sleepy Hollow Investment Company Office Lease made August 23, 1996 between Sleepy Hollow Investment
Company and Intraware, Inc.
10.8** First Amendment to the Lease for Intraware, Inc. entered into as of May 5, 1997 by and between the
Registrant and Sleepy Hollow Investment Company I.
10.9** Second Amendment to the Lease for Intraware, Inc. entered into as of March 31, 1998 by and between the
Registrant and Sleepy Hollow Investment Company I.
10.10** Master Lease Agreement dated September 9, 1998 between Comdisco, Inc. and Intraware, Inc.
10.11** Addendum and Equipment Schedules to the Master Lease Agreement dated as of September 9, 1998 between
Intraware, Inc., as Lessee and Comdisco, Inc, as Lessor.
10.12+** Services Agreement between Netscape Communications Corporation and Intraware, Inc. entered into as of
October 1, 1998.
10.13+** Netcenter Services Agreement between Netscape Communications Corporation and Intraware, Inc. entered
into as of September 3, 1998.
10.14+** Amended and Restated Electronic Distribution License Agreement between Netscape Communications
Corporation and Intraware, Inc. entered into as of March 6, 1997.
23.1** Consent of Independent Accountants.
23.2** Consent of Counsel (see Exhibit 5.1).
24.1** Power of Attorney.
27.1** Financial Data Schedules.
99.1** Consent of Bluestone Software
99.2** Consent of Check Point Software Technologies Ltd.
99.3** Consent of Informix Corporation
99.4** Consent of Infoseek Corporation
99.5** Consent of Sun Microsystems, Inc.
99.6 Consent of Netscape Communications Corporation
99.7** Consent of David R. Klinzman (Longs Drugs)
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II-3
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99.8** Consent of Scott M. Langdoc (Raley's Inc.)
99.9** Consent of RealNetworks, Inc.
</TABLE>
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+ Certain portions of this exhibit have been granted confidential treatment by
the Commission. The omitted portions have been separately filed with the
Commission.
* To be filed by amendment.
** Previously filed.
(B) FINANCIAL STATEMENT SCHEDULES
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referenced in Item 14 of
this Registration Statement or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer, or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by a director,
officer or controlling person in connection with the securities being registered
hereunder, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of Prospectus shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-4
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT HAS DULY CAUSED THIS AMENDMENT NO. 5 TO REGISTRATION STATEMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY
OF ORINDA, STATE OF CALIFORNIA, ON THE 25TH DAY OF FEBRUARY, 1999.
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INTRAWARE, INC.
By /s/ PETER H. JACKSON
------------------------------------------
PETER H. JACKSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
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POWER OF ATTORNEY
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
AMENDMENT NO. 5 TO REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED BELOW.
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SIGNATURE TITLE DATE
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President, Chief Executive
/s/ PETER H. JACKSON Officer and Director
- ------------------------------ (Principal Executive February 25, 1999
(PETER H. JACKSON) Officer)
Executive Vice President
* and Chief Financial
- ------------------------------ Officer (Principal February 25, 1999
(DONALD M. FREED) Financial Officer)
*
- ------------------------------ Director February 25, 1999
(LAURENCE M. BAER)
*
- ------------------------------ Director February 25, 1999
(JOHN V. BALEN)
*
- ------------------------------ Director February 25, 1999
(MARY ANN BYRNES)
*
- ------------------------------ Director February 25, 1999
(CHARLES G. DAVIS, JR.)
*
- ------------------------------ Director February 25, 1999
(MARK B. HOFFMAN)
*
- ------------------------------ Director February 25, 1999
(RONALD E. F. CODD)
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/s/ PETER H. JACKSON
------------------------------------
(PETER H. JACKSON)
* By ATTORNEY-IN-FACT
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EXHIBIT INDEX
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EXHIBIT
NUMBER PAGE
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1.1** Form of Underwriting Agreement.
3.1** Restated Certificate of Incorporation of the Registrant to be in effect after the closing of
the offering made under this Registration Statement.
3.2** Restated Bylaws of the Registrant to be in effect after the closing of the offering made
under this Registration Statement.
4.1** Specimen Common Stock Certificate.
5.1** Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1** Form of Indemnification Agreement between the Registrant and each of its directors and
officers.
10.2** 1996 Stock Option Plan (as amended on December 17, 1998) and form of agreements thereunder.
10.3** 1998 Employee Stock Purchase Plan and form of agreements thereunder.
10.4** 1998 Director Option Plan and form of agreements thereunder.
10.5** Form of Registration and Information Rights Agreement.
10.6** Loan Agreement entered into as of July 29, 1998 between the Registrant and Imperial Bank and
related General Security Agreement and Collateral Assignment as Collateral, Patent Mortgage
and Security Agreement.
10.7** Sleepy Hollow Investment Company Office Lease made August 23, 1996 between Sleepy Hollow
Investment Company and Intraware, Inc.
10.8** First Amendment to the Lease for Intraware, Inc. entered into as of May 5, 1997 by and
between the Registrant and Sleepy Hollow Investment Company I.
10.9** Second Amendment to the Lease for Intraware, Inc. entered into as of March 31, 1998 by and
between the Registrant and Sleepy Hollow Investment Company I.
10.10** Master Lease Agreement dated September 9, 1998 between Comdisco, Inc. and Intraware, Inc.
10.11** Addendum and Equipment Schedules to the Master Lease Agreement dated as of September 9, 1998
between Intraware, Inc., as Lessee and Comdisco, Inc, as Lessor.
10.12+** Services Agreement between Netscape Communications Corporation and Intraware, Inc. entered
into as of October 1, 1998.
10.13+** Netcenter Services Agreement between Netscape Communications Corporation and Intraware, Inc.
entered into as of September 3, 1998.
10.14+** Amended and Restated Electronic Distribution License Agreement between Netscape
Communications Corporation and Intraware, Inc. entered into as of March 6, 1997.
23.1** Consent of Independent Accountants.
23.2** Consent of Counsel (see Exhibit 5.1).
24.1** Power of Attorney.
27.1** Financial Data Schedules.
99.1** Consent of Bluestone Software
99.2** Consent of Check Point Software Technologies Ltd.
99.3** Consent of Informix Corporation
99.4** Consent of Infoseek Corporation
99.5** Consent of Sun Microsystems, Inc.
99.6 Consent of Netscape Communications Corporation
99.7** Consent of David R. Klinzman (Longs Drugs)
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EXHIBIT
NUMBER PAGE
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99.8** Consent of Scott M. Langdoc (Raley's Inc.)
99.9** Consent of RealNetworks, Inc.
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+ Certain portions of this exhibit have been granted confidential treatment by
the Commission. The omitted portions have been separately filed with the
Commission.
* To be filed by amendment.
** Previously filed.
<PAGE>
Exhibit 99.6
Form of consent for testimonial and logo:
The undersigned, as an authorized representative of Netscape
Communications Corporation, hereby consents to the use of the Netscape
Communications Corporation logo and the inclusion of the following quotation
attributed to the undersigned, as representative of Netscape Communications
Corporation in the registration statement on Form S-1 (Registration No.
333-69261) and all amendments thereto (the "Registration Statement") of
Intraware, Inc.:
"Netscape strongly benefits from the INTRAWARE.SHOP service by its
ability to market the breadth of our server software products in an
online environment. By capitalizing on the Intraware SUBSCRIBNET
service, we have entrusted to Intraware the electronic software
update delivery and maintenance of Netscape's entire product line
to our customers worldwide. We recognize Intraware's expertise in
delivering IT knowledge management content. As a result,
Intraware's resource-rich knowledge content prominently resides in
our Netcenter portal. Both companies have benefited from this
relationship by cross-referencing qualified members of the IT
community."
--James Barksdale, President and CEO, Netscape Communications
Corporation
, and further consents to the inclusion of this consent as an exhibit to such
Registration Statement.
Netscape Communications
[company name]
(Signature) By: /s/ James L. Barksdale
-------------------------
Name: James L. Barksdale
-------------------------
Title: President and CEO
-------------------------
Date: Feb. 25, 1999
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