<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 10, 1999
REGISTRATION NO. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
INTRAWARE, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C>
DELAWARE 68-0389976
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
INTRAWARE, INC.
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)
------------------------------
1996 STOCK OPTION PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
1998 DIRECTOR OPTION PLAN
---------------------
DONALD M. FREED
CHIEF FINANCIAL OFFICER
INTRAWARE, INC.
25 ORINDA WAY
ORINDA, CA 94563
(925) 253-4500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
COPY TO:
DAVID J. SEGRE, ESQ.
ADAM R. DOLINKO, ESQ.
DAVID R. BOWMAN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
------------------------------
Approximate date of commencement of proposed sale to the public: as soon as
practicable after the Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plan, please check the following
line: ____
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, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following line: _X_
------------------------------
CALCULATION OF REGISTRATION FEE
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<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED BE REGISTERED PER SHARE (1) OFFERING PRICE (1) FEE (1)
<S> <C> <C> <C> <C>
Common Stock, 0.0001 par value
Issuable under:
1996 Stock Option Plan (as amended December
17, 1998)................................. 3,751,518 $9.598112 $36,007,489 $10,011
1998 Employee Stock Purchase Plan........... 600,000 $16.21875 $9,731,250 $2,706
1998 Director Option Plan................... 150,000 $16.21875 $2,432,813 $677
Total....................................... 4,501,518 $10.70118 $48,171,552 $13,394
</TABLE>
(1) Estimated in part pursuant to Rule 475(h) under the Securities Act of 1933,
as amended (the Act), and in part pursuant to Rule 457(c) under the Act.
With respect to 1,585,158 shares subject to outstanding options to purchase
Common Stock as of February 25, 1999, under the 1996 Stock Option Plan, the
Proposed Maximum Offering Price Per Share is equal to the weighted average
exercise price of $0.55 per share pursuant to Rule 457(h). With respect to
2,166,360 shares of Common Stock available for future grant under the 1996
Stock Option Plan and all the shares issuable under both the 1988 Employee
Stock Purchase Plan and 1998 Director Option Plan, the estimated Proposed
Maximum Offering Price Per Share was estimated pursuant to Rule 457(c) as
the average between the high and low price reported by the Nasdaq National
Market on March 5, 1999, which average was $16.21875. The Proposed Maximum
Offering Price Per Share represents a weighted average of the foregoing
estimates calculated in accordance with Rules 457(c) and 457(h).
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<PAGE>
INTRAWARE, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information filed with the Securities and
Exchange Commission (the "Commission") by the registrant are incorporated herein
by reference:
(a) The Registrant's final prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended, relating to the Registration
Statement on Form S-1 (Registration No. 333-69261), which was declared
effective by the SEC on February 25, 1999.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the latest fiscal year covered by the
document referred to in (a) above.
(c) The description of the Company's common stock which is contained in the
Company's Registration Statement on Form 8-A filed with the Commission
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and any description of any securities of the
Registrant which is contained in any registration statement filed after
the date hereof under Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating any such
description.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation, as amended and restated,
limits the liability of directors to the maximum extent permitted by Delaware
law. Delaware law provides that directors of a corporation will not be
personally liable for monetary damages for breach of their fiduciary duties as
directors except for liability arising out of: (i) a breach of their duty of
loyalty to the corporation or its stockholders; (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; (iii) unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General Corporation Law;
or (iv) any transaction from which the director derived an improper personal
benefit.
The Company's charter documents provide that the Company shall indemnify its
officers, directors and agents to the fullest extent permitted by law, including
those circumstances where indemnification would otherwise be discretionary. The
Company believes that indemnification under its charter documents covers at
least negligence and gross negligence on the part of indemnified parties. The
Company has
II-1
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entered into indemnification agreements with each of its directors and officers
which may, in some cases, be broader than the specific indemnification
provisions contained in the Delaware General Corporation Law. The
indemnification agreements may require the Company, among other things, to
indemnify each director and officer against certain liabilities that may arise
by reason of their status or service as directors or officers (other than
liabilities arising from willful misconduct of a culpable nature) and to advance
such persons' expenses incurred as a result of any proceeding against him or her
as to which such person could be indemnified.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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*4.1 1996 Stock Option Plan (as amended December 17, 1998)
*4.2 1998 Employee Stock Purchase Plan
*4.3 1998 Director Option Plan
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney
</TABLE>
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* Included by Reference. See Form S-1 declared effective by the SEC on
February 25, 1999 (Registration No. 333-69261)
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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.
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(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, 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 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 such
director, officer or controlling person in connection with the securities being
registered, 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 of 1933 and will be governed by the
final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Orinda, State of California, on March 10, 1999.
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By: /s/ PETER H. JACKSON
-----------------------------------------
Peter H. Jackson
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement of Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
President, Chief Executive
/s/ PETER H. JACKSON Officer and Director
- ------------------------------ (Principal Executive March 10, 1999
Peter H. Jackson Officer)
Executive Vice President
/s/ DONALD M. FREED and Chief Financial
- ------------------------------ Officer (Principal March 10, 1999
Donald M. Freed Financial Officer)
*
- ------------------------------ Director March 10, 1999
Laurence M. Baer
*
- ------------------------------ Director March 10, 1999
John V. Balen
*
- ------------------------------ Director March 10, 1999
Mary Ann Byrnes
*
- ------------------------------ Director March 10, 1999
Charles G. Davis Jr.
*
- ------------------------------ Director March 10, 1999
Mark B. Hoffman
*
- ------------------------------ Director March 10, 1999
Ronald E. F. Codd
*By: /S/ PETER H. JACKSON
Peter H. Jackson
ATTORNEY-IN-FACT
</TABLE>
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INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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<C> <S>
4.1 1996 Stock Option Plan (as amended December 17, 1998) (1)
4.2 1998 Employee Stock Purchase Plan (2)
4.3 1998 Director Option Plan (3)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati
23.1 Consent of Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney
</TABLE>
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(1) Incorporated by reference. See Exhibit 10.2 of Intraware's Registration
Statement on Form S-1 (Registration No. 333-69261) which was declared
effective on February 25, 1998.
(2) Incorporated by reference. See Exhibit 10.3 of Intraware's Registration
Statement on Form S-1 (Registration No. 333-69261) which was declared
effective on February 25, 1998.
(3) Incorporated by reference. See Exhibit 10.4 of Intraware's Registration
Statement on Form S-1 (Registration No. 333-69261) which was declared
effective on February 25, 1998.
II-5
<PAGE>
EXHIBIT 5.1
Wilson Sonsini Goodrich & Rosati
Palo Alto, California
March 9, 1999
Intraware, Inc.
25 Orinda Way
Orinda, CA 94563
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about March 9, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 3,751,518 shares of Intraware's Common
Stock reserved for issuance under the 1996 Stock Option Plan, as amended;
600,000 shares of Common Stock reserved for issuance under the 1998 Employee
Stock Purchase Plan and 150,000 shares of Common Stock reserved for issuance
under the 1998 Director Option Plan (collectively, the "Plans"). As your legal
counsel, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the sale and issuance
of such Common Stock under the Plans.
It is our opinion that, when issued and sold in the respective manners
referred to in the Plans and pursuant to the agreements which accompany the
Plans, the Common Stock issued and sold thereby will be legally and validly
issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of this
Registration Statement on Form S-8 of our report dated February 22, 1999
appearing on page F-2 of Intraware, Inc.'s Registration Statement on Form S-1
(Registration No. 333-69261).
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
March 8, 1999
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
EACH PERSON WHOSE INDIVIDUAL SIGNATURE APPEARS BELOW HEREBY AUTHORIZES AND
APPOINTS PETER H. JACKSON AND DONALD M. FREED, AND EACH OF THEM, WITH FULL POWER
OF SUBSTITUTION AND RESUBSTITUTION AND FULL POWER TO ACT WITHOUT THE OTHER, AS
HIS TRUE AND LAWFUL ATTORNEY-IN-FACT AND AGENT TO ACT IN HIS NAME, PLACE AND
STEAD AND TO EXECUTE IN THE NAME AND ON BEHALF OF EACH PERSON, INDIVIDUALLY AND
IN EACH CAPACITY STATED BELOW, AND TO FILE, ANY AND ALL AMENDMENTS TO THIS
REGISTRATION STATEMENT, INCLUDING ANY AND ALL POST-EFFECTIVE AMENDMENTS AND
AMENDMENTS THERETO AND ANY REGISTRATION STATEMENT RELATING TO THE SAME OFFERING
AS THIS REGISTRATION STATEMENT THAT IS TO BE EFFECTIVE UPON FILING PURSUANT TO
RULE 462(B) UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND TO FILE THE SAME,
WITH ALL EXHIBITS THERETO, AND OTHER DOCUMENTS IN CONNECTION THEREWITH, WITH THE
SECURITIES AND EXCHANGE COMMISSION, GRANTING UNTO SAID ATTORNEYS-IN-FACT AND
AGENTS, AND EACH OF THEM, FULL POWER AND AUTHORITY TO DO AND PERFORM EACH AND
EVERY ACT AND THING, RATIFYING AND CONFIRMING ALL THAT SAID ATTORNEYS-IN-FACT
AND AGENTS OR ANY OF THEM OR THEIR OR HIS SUBSTITUTE OR SUBSTITUTES MAY LAWFULLY
DO OR CAUSE TO BE DONE BY VIRTUE THEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED BELOW.
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<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
President, Chief Executive
/s/ PETER H. JACKSON Officer and Director
- ------------------------------ (Principal Executive December 18, 1998
(PETER H. JACKSON) Officer)
Executive Vice President
/s/ DONALD M. FREED and Chief Financial
- ------------------------------ Officer (Principal December 18, 1998
(DONALD M. FREED) Financial Officer)
/s/ LAURENCE M. BAER
- ------------------------------ Director December 17, 1998
(LAURENCE M. BAER)
/s/ JOHN V. BALEN
- ------------------------------ Director December 17, 1998
(JOHN V. BALEN)
/s/ MARY ANN BYRNES
- ------------------------------ Director December 17, 1998
(MARY ANN BYRNES)
/s/ CHARLES G. DAVIS, JR.
- ------------------------------ Director December 17, 1998
(CHARLES G. DAVIS, JR.)
/s/ MARK B. HOFFMAN
- ------------------------------ Director December 17, 1998
(MARK B. HOFFMAN)
/s/ RONALD E. F. CODD
- ------------------------------ Director February 18, 1999
(RONALD E. F. CODD)
</TABLE>
