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[EXHIBIT 5.1]
[WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL CORPORATION LETTERHEAD]
November 9, 2000
Intraware, Inc.
2000 Powell Street, Suite 140
Emeryville, California 94608
Re: Intraware, Inc.
REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as counsel for you in connection with the preparation of the
registration statement on Form S-3 (as so amended, the "Registration Statement")
filed by you with the Securities and Exchange Commission (the "Commission") on
November 9, 2000, under the Securities Act of 1933, as amended (the "Securities
Act"). The Registration Statement relates to sale from time to time by certain
selling securityholders (as set forth in the Registration Statement, the
"Selling Securityholders"), pursuant to Rule 415 of the General Rules and
Regulations of the Commission promulgated under the Securities Act, of shares of
common stock, par value $.0001 per share (the "Common Stock"), issuable upon the
conversion of (the "Conversion Shares") or in lieu of cash dividends on (the
"Dividend Shares") the Series A, Series B and Series C Convertible Preferred
Stock and upon exercise of the related warrants (the "Warrant Shares") of
Intraware, Inc., a Delaware corporation (the "Company").
This opinion is being furnished in accordance with the requirements of Item
601(b)(5) of Regulation S-K promulgated under the Securities Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of: (i) a copy of the
Registration Statement as filed with the Commission; (ii) an executed copy of
the Securities Purchase Agreement, dated June 29, 2000, between the Company and
certain investors (the "Purchase Agreement"); (iii) an executed copy of the
Registration Rights Agreement, dated June 29, 2000, between the Company and
certain investors (the "Rights Agreement"); (iv) an executed copy of each of the
warrants (the "Warrants"); (v) copies of the shares of Series A, Series B and
Series C Convertible Preferred Stock (the "Preferred Shares"); (vi) the Amended
and Restated Certificate of Incorporation of the Company, as currently in
effect; (vii) the Amended and Restated Bylaws of the Company, as currently in
effect; (viii) the Certificate of Designations, Preferences and Rights of the
Series A, Series B and Series C Preferred Shares (the "Certificate of
Designations"), as filed with the Secretary of State of the State of Delaware;
and (ix) certain resolutions of the Board of Directors of the Company relating
to, among other things, the creation, issuance and sale of the Preferred Shares
and the issuance and sale of the Warrants in the manner contemplated by the
Purchase Agreement (the "Board Resolutions").
We have also examined originals or copies, certified or otherwise identified
to our satisfaction, of such records of the Company and the Selling
Securityholders and such agreements, certificates or records of public
officials, certificates of officers or other representatives of the Company and
the Selling Securityholders, and such other documents, certificates and records
as we have deemed necessary or appropriate as a basis for the opinions set forth
herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
executed documents, we have
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assumed that the parties thereto, other than the Company, had or will have the
power, corporate or other, to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action, corporate
or other, and execution and delivery by such parties of such documents and the
validity, enforceability and binding effect thereof on such parties. As to any
facts material to the opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of officers and other representatives of the Company and the
Selling Securityholders.
We do not express any opinion as to the laws of any jurisdiction other than
Delaware General Corporation Law.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Conversion Shares initially issuable upon the conversion of the
Preferred Shares in accordance with the terms of the Certificate of Designations
and the Warrant Shares initially issuable upon exercise of the Warrants in
accordance with the terms of the Warrants, have been duly authorized and
reserved for issuance and, when issued in accordance with the terms of the
Certificate of Designations and the Warrants, as the case may be, will be
validly issued, fully paid and non-assessable, provided in each case that such
shares are issued for prices in excess of the par value;
2. The Dividend Shares, when the Board of Directors of the Company or an
authorized committee thereof has taken all necessary corporate action to
authorize the issuance of the Dividend Shares in accordance with the Board
Resolutions and, when issued in accordance with the terms of the Certificate of
Designations, will be validly issued, fully paid and non-assessable.
With respect to the foregoing opinions, we call to your attention that
because the conversion rate of the Preferred Shares is subject to adjustment
under the terms of the Certificate of Designations based, in part, on decreases
in the market prices for the common stock, it may be necessary for the Company
to take additional corporate action and make additional filings with the
Secretary of State of the State of Delaware in order to increase the number of
shares of common stock authorized and reserved for issuance. In addition, with
respect to the foregoing opinions, we have assumed, with your consent, that the
certificates representing the Conversion Shares, the Warrant Shares and the
Dividend Shares will be manually signed by one of the authorized officers of the
transfer agent and registrar of the Company and will conform to the specimen
thereof examined by us. With respect to the opinion in paragraph 2 above, we
have assumed compliance with Section 170 of the Delaware General Corporation
Law.
We hereby consent to the filing of this opinion with the Commission as an
Exhibit to the Registration Statement. We also consent to the reference to our
firm throughout the Registration Statement and under the caption "Legal Matters"
in the prospectus which constitutes a part of the Registration Statement. This
opinion is expressed as of the date hereof and we disclaim any undertaking to
advise you of any subsequent changes in the facts stated or assumed herein or of
any subsequent changes in applicable law.
Very truly yours,
/s/ Wilson Sonsini Goodrich & Rosati,
Professional Corporation
