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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER , 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
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 4899 68-0389976
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
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2000 POWELL STREET
SUITE 140
EMERYVILLE, CA 94608
(925) 253-4500
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
JOHN J. MOSS
GENERAL COUNSEL
2000 POWELL STREET
SUITE 140
EMERYVILLE, CA 94608
(925) 253-4500
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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COPIES TO:
JOHN DONAHUE, ESQ.
ADAM R. DOLINKO, ESQ.
MICHAEL A. WALKER, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box./ /
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box./X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please 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, please 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,
please check the following box./ /
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./ /
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED SECURITY(1) PRICE(1) REGISTRATION FEE
<S> <C> <C> <C> <C>
COMMON STOCK, $0.001 PAR VALUE PER
SHARE.............................. 451,998 SHARES $3,305,235.38 $3,305,235.38 $872.58
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933 based on a per
share price of $7.3125, the average of the high and low reported sales
prices of the Registrant's common stock on the Nasdaq National Market on
November 6, 2000.
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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 THEREAFTER 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 SAID SECTION 8(a),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
SUBJECT TO COMPLETION, DATED NOVEMBER 9, 2000
INTRAWARE, INC.
451,998 Shares
Common Stock
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This prospectus relates to the offer and sale of up to 451,998 shares of our
common stock by the selling securityholders identified in this prospectus. We
will not receive any of the proceeds from the sale of shares of common stock by
the selling securityholders.
The reported last sales price of our common stock on the Nasdaq National
Market on November 6, 2000 was $7.3125 per share. Our common stock is quoted on
the Nasdaq National Market under the symbol "ITRA."
The securities offered hereby involve a high degree of risk. See "Risk
Factors" beginning on page 3 of this prospectus for information that you should
consider before purchasing these securities.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THIS PROSPECTUS IS DATED NOVEMBER 9, 2000
<PAGE>
You should rely only on the information contained in or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
different information. No offer of these securities is being made in any state
where the offer is not permitted. You should not assume that the information
contained in or incorporated by reference in this prospectus is accurate as of
any date other than the date on the front of this prospectus.
TABLE OF CONTENTS
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PAGE
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THE COMPANY................................................. 2
RISK FACTORS................................................ 3
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS............ 12
USE OF PROCEEDS............................................. 13
SELLING SECURITYHOLDERS..................................... 14
PLAN OF DISTRIBUTION........................................ 15
LEGAL MATTERS............................................... 16
EXPERTS..................................................... 16
WHERE YOU CAN FIND MORE INFORMATION......................... 17
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THE COMPANY
We are a leading provider of information technology management solutions.
Our services allow information technology professionals to manage the business
software life cycle from their web browsers--starting with research and
evaluation, through purchase, training, and deployment, to updates and asset
management. We provide objective technical research; in-depth software analysis;
an extensive selection of software, training, and resources; and a comprehensive
software delivery, deployment, update, and asset management system.
Intraware, Inc. was incorporated in Delaware on August 14, 1996. Our
principal executive offices are located at 2000 Powell Street, Suite 140,
Emeryville, California 94608. Our Website is located at
http://www.intraware.com. Information contained in our website does not
constitute part of this prospectus.
On July 12, 2000, we completed the acquisition of Janus Technologies, Inc.,
based in Pittsburgh, Pennsylvania, in exchange for 1,169,000 shares of our
common stock. In connection with this transaction, Intraware and Janus entered
into an Agreement and Plan of Reorganization and Registration Rights and Lock-Up
Agreement, containing, among other things, registration rights.
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RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE RISKS DESCRIBED BELOW BEFORE MAKING A
DECISION TO INVEST IN INTRAWARE. THE RISKS AND UNCERTAINTIES DESCRIBED BELOW ARE
NOT THE ONLY ONES FACING INTRAWARE. ADDITIONAL RISKS AND UNCERTAINTIES NOT
PRESENTLY KNOWN TO US OR THAT WE DO NOT CURRENTLY BELIEVE ARE IMPORTANT TO AN
INVESTOR MAY ALSO HARM OUR BUSINESS OPERATIONS. IF ANY OF THE EVENTS,
CONTINGENCIES, CIRCUMSTANCES OR CONDITIONS DESCRIBED IN THE FOLLOWING RISKS
ACTUALLY OCCUR, OUR BUSINESS, FINANCIAL CONDITION OR RESULTS OF OPERATIONS COULD
BE SERIOUSLY HARMED. IF THAT OCCURS, THE TRADING PRICE OF INTRAWARE COMMON STOCK
COULD DECLINE, AND YOU MAY LOSE PART OR ALL OF YOUR INVESTMENT.
RISKS RELATED TO OUR BUSINESS
WE HAVE NEGATIVE CASH FLOW AND MAY NOT HAVE SUFFICIENT CASH TO EFFECTIVELY
MANAGE OUR WORKING CAPITAL REQUIREMENTS AND FUND OUR OPERATIONS FOR THE PERIOD
REQUIRED TO ACHIEVE PROFITABILITY.
We have limited cash and credit available, and may be unable to raise
additional financing or establish additional lines of credit. As of August 31,
2000, we had approximately $22.2 million of cash and cash equivalents and
$7.0 million in short-term marketable securities, before our repayment of
$7.9 million to our preferred stockholders in September 2000. As of August 31,
2000, our available credit under existing lines of credit was $1.7 million.
There can be no assurance that we will be able to achieve the revenue and gross
margin objectives necessary to achieve profitability without either obtaining
additional financing or reducing our expenses or expense growth. Any substantial
reduction in our expenses or expense growth could impair our future revenue
growth by cutting product development, sales, marketing and/or support
resources. Any such impairment of revenue growth could slow or prevent our
transition to profitability and have a material adverse effect on our business.
WE HAVE A HISTORY OF LOSSES, WE EXPECT FUTURE LOSSES AND WE MAY NOT EVER BECOME
PROFITABLE.
We have not achieved profitability, expect to incur net losses in the
foreseeable future and may not ever become profitable in the future. We incurred
net losses of $28.0 million for the year ended February 29, 2000, $15.0 million
for the year ended February, 28, 1999, $6.0 million for the year ended
February 28, 1998 and $1.5 million for the period from August 14, 1996 through
February 28, 1997. In addition, we incurred net losses of $11.6 million and
$23.4 million for the three months and six months ended August 31, 2000,
respectively. As of August 31, 2000, we had an accumulated deficit of
approximately $72.8 million. Net losses have increased for each of our quarters
since inception and we cannot assure you this trend will not continue. We expect
to continue to increase our sales and marketing, product development and
administrative expenses. As a result we will need to generate significant
additional revenues to achieve and maintain profitability.
We were founded in August 1996, and are an early stage company. We have a
limited operating history that makes it difficult to forecast our future
operating results. Although our revenues have grown in most of our recent
quarters, we cannot be certain that such growth will continue or that we will
achieve sufficient revenues for profitability. If we do achieve profitability in
any period, we cannot be certain of continued or increased profitability on a
quarterly or annual basis.
WE ARE SUBSTANTIALLY DEPENDENT ON THE SUN/NETSCAPE ALLIANCE AND THE TERMINATION
OF THIS RELATIONSHIP WOULD HAVE A SUBSTANTIAL, IMMEDIATE ADVERSE EFFECT ON OUR
BUSINESS.
For the three months ended August 31, 2000, we generated approximately 83.4%
of our software product revenues from the sale of the Sun/Netscape Alliance's
iPlanet software, and approximately 37.7% of our online service revenues from
the outsourcing of INTRAWARE DELIVERY services to the Sun/Netscape Alliance. As
a result, transactions with the Sun/Netscape Alliance and the sale of iPlanet
products accounted for approximately 67.5% of our total net revenues in the
three months
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ended August 31, 2000. Our agreement for resale of iPlanet products will expire
on December 31, 2000, and we cannot assure you that the term of that agreement
will be extended or that a replacement agreement will be executed. If the
existing agreement for resale of iPlanet products were not extended or replaced,
or the Sun/Netscape Alliance otherwise limited or discontinued selling its
software through us, our business would be adversely affected.
We provide online software update and license management services to
Sun/Netscape Alliance customers through our INTRAWARE DELIVERY service under an
agreement that expires on June 30, 2001. We cannot assure you that this
agreement will be extended. Substantially all of our INTRAWARE DELIVERY revenues
to date have been generated through this Sun contract, and our failure to extend
this contract at the end of its current term could have a material adverse
effect on our INTRAWARE DELIVERY revenues and on our business as a whole.
If Sun and/or Netscape chose to offer its own electronic software delivery,
tracking, maintenance or other services, which it is permitted to do under the
current agreements, it would have a substantial and immediate adverse effect on
our business, results of operations and financial condition.
THE LOSS OF ONE OR MORE OF OUR KEY CUSTOMERS COULD ADVERSELY AFFECT OUR
REVENUES.
We believe that a substantial amount of revenue from software product sales
in any given future period may come from a relatively small number of customers.
If one or more major customers were to substantially cut back software purchases
or stop using our products or services, our operating results could be
materially adversely affected. We do not have long-term contractual
relationships with most of these customers because they purchase software on a
transaction by transaction basis. As a result, we cannot assure you that any of
our customers who purchase software through us will purchase from us in future
periods.
OUR QUARTERLY FINANCIAL RESULTS ARE SUBJECT TO SIGNIFICANT FLUCTUATIONS BECAUSE
OF MANY FACTORS AND ANY OF THESE COULD ADVERSELY AFFECT OUR STOCK PRICE.
We believe that quarter-to-quarter comparisons of our operating results are
not a good indication of our future performance. It is likely that in some
future quarter our operating results may be below the expectations of public
market analysts and investors and as a result, the price of our common stock may
fall. Our operating results have varied widely in the past, and we expect that
they will continue to vary significantly from quarter to quarter due to a number
of risk factors, including:
- demand for our online services and the products of our software vendors;
- the timing of sales of our online services and the products of our
software vendors;
- aggressive cost management in the sales, marketing, product development
and support areas;
- loss of strategic relationships with major software vendors;
- the mix of our proprietary online services vs. software products sold;
- delays in introducing our online services or our vendors' software
products according to planned release schedules;
- our ability to retain existing customers and attract new customers;
- changes in our pricing policies or the pricing policies of our software
vendors;
- changes in the growth rate of Internet usage and acceptance by customers
of electronic software delivery for large software purchases, particularly
for international customers;
- technical difficulties, system failures or Internet downtime;
- the mix of domestic and international sales;
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- certain government regulations;
- our ability to upgrade and develop our information technology systems and
infrastructure;
- costs related to acquisitions of technology or businesses; and
- general economic conditions as well as those specific to the Internet and
related industries.
While we have recently experienced increasing gross margins on revenues
derived from software product sales, there can be no assurance that such
increases will continue. Also, as we have shifted a larger proportion of our
sales and marketing resources toward our more recently introduced online
services, such as INTRAWARE DEPLOYMENT, INTRAWARE E-LEARNING and INTRAWARE ASSET
MANAGEMENT, we have experienced and may continue to experience one or more
quarters of reduced software product sales. Any shortfall in our revenues would
directly adversely affect our operating income or loss, and these fluctuations
could affect the market price of our common stock.
We plan to significantly increase our operating expenses to expand our sales
and marketing operations, broaden our customer support capabilities, and fund
greater levels of product development. Our operating expenses, which include
sales and marketing, product development and general and administrative
expenses, are based on our expectations of future revenues and are relatively
fixed in the short term. If revenues fall below our expectations and we are not
able to quickly reduce our spending in response, our operating results would be
adversely affected.
OUR NEWLY INTRODUCED ONLINE SERVICES MAY NOT BE ABLE TO GENERATE ANTICIPATED
REVENUES.
We have only recently started selling a number of online services such as
INTRAWARE DEPLOYMENT, INTRAWARE VOLUME LICENSING, INTRAWARE E-LEARNING and
INTRAWARE ASSET MANAGEMENT. We cannot assure you that these online services will
result in additional customers and customer loyalty, significant additional
revenues or improved operating margins in future periods. Additionally, we
cannot assure you that software vendors will continue to find it strategically
or economically justifiable for us to deliver the INTRAWARE DELIVERY service to
their customers.
We had no significant online services revenues until the quarter ended
November 30, 1998, and for the three months ended August 31, 2000, revenues from
online services and technology totaled only $6.5 million, which constituted
19.9% of our total revenues for that period. These online services are not only
important to improving our operating results but also to continuing to attract
and retain both our software vendor and corporate information technology
professional customers, and in differentiating our online service offerings from
those of our competitors.
OUR INDUSTRY IS HIGHLY COMPETITIVE AND WE CANNOT ASSURE YOU THAT WE WILL BE ABLE
TO EFFECTIVELY COMPETE.
The market for selling software products and related online services is
highly competitive. We expect competition to intensify as current competitors
expand their product offerings and new competitors enter the market. We have
recently experienced, and expect to continue to experience, price competition on
our software sales, particularly on large sales transactions. We cannot assure
you that we will be able to compete successfully against current or future
competitors, or that competitive pressures faced by us will not adversely affect
our business and results of operations.
Our current competitors include a number of companies offering one or more
solutions for the researching, evaluation, purchase, deployment and maintenance
of, and training on, business software. Because there are relatively low
barriers to entry in the software and Internet services markets, we expect
additional competition from other established and emerging companies. Increased
competition is likely to result in price reductions, reduced gross margins and
loss of market share, any of which could have a significant adverse effect on
our business and results of operations.
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Many of our current and potential competitors have longer operating
histories, significantly greater financial, technical, marketing and other
resources, better name recognition, and a larger installed base of customers
than we do. Many of our competitors may also have well-established relationships
with our existing and prospective customers.
Our current and potential competitors have established or may establish
cooperative relationships among themselves or with third parties to increase the
ability of their products to address customer needs and compete with our
products. We also expect that the competition will increase as a result of
software industry consolidations. As a result, we may not be able to effectively
compete for customers.
WE ARE DEPENDENT ON MARKET ACCEPTANCE OF ELECTRONIC SOFTWARE DELIVERY, AND IF IT
DOES NOT ACHIEVE WIDESPREAD ACCEPTANCE, OUR BUSINESS WILL BE ADVERSELY AFFECTED.
Our success will depend in large part on acceptance by information
technology professionals of electronic software delivery as a method of buying
business software. If electronic software delivery does not achieve widespread
market acceptance, our business will be adversely affected. Electronic software
delivery is a relatively new method of selling software products and the growth
and market acceptance of electronic software delivery is highly uncertain and
subject to a number of risk factors. These factors include:
- the potential for state and local authorities to levy taxes on Internet
transactions;
- the availability of sufficient network bandwidth to enable purchasers to
rapidly download software;
- the number of software packages that are available for purchase through
electronic software delivery as compared to those available through
traditional delivery methods;
- the level of customer confidence in the process of downloading software;
and
- the relative ease of such a process and concerns about transaction
security.
Even if electronic software delivery achieves widespread acceptance, we
cannot be sure that we will overcome the substantial technical challenges
associated with electronically delivering software reliably and consistently on
a long-term basis. Furthermore, the proliferation of software viruses poses a
risk to market acceptance of electronic software delivery. Any well-publicized
transmission of a computer virus by us or another company using electronic
software delivery could deter information technology professionals from
utilizing electronic software delivery technology and our business could be
adversely affected.
CONTINUED ADOPTION OF THE INTERNET AS A METHOD OF CONDUCTING BUSINESS IS
NECESSARY FOR OUR FUTURE GROWTH.
The widespread acceptance and adoption of the Internet by traditional
businesses for conducting business and exchanging information is likely only in
the event that the Internet provides these businesses with greater efficiencies
and improvements. The failure of the Internet to continue to develop as a
commercial or business medium would adversely affect our business.
FAILURE TO EXPAND INTERNET INFRASTRUCTURE COULD LIMIT OUR FUTURE GROWTH.
The recent growth in Internet traffic has caused frequent periods of
decreased performance, and if Internet usage continues to grow rapidly, its
infrastructure may not be able to support these demands and its performance and
reliability may decline. If outages or delays on the Internet occur frequently
or increase in frequency, overall web usage including usage of our web site in
particular could grow more slowly or decline. Our ability to increase the speed
and scope of our services to customers is ultimately limited by and dependent
upon the speed and reliability of both the Internet and our customers' internal
networks. Consequently, the emergence and growth of the market for our services
is dependent
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on improvements being made to the entire Internet as well as to our individual
customers' networking infrastructures to alleviate overloading and congestion.
INCREASED SECURITY RISKS OF ONLINE COMMERCE MAY DETER FUTURE USE OF OUR
SERVICES.
Concerns over the security of transactions conducted on the Internet and the
privacy of users may also inhibit the growth of the Internet and other online
services generally, and online commerce in particular. Our failure to prevent
security breaches could significantly harm our business and results of
operations. We cannot be certain that advances in computer capabilities, new
discoveries in the field of cryptography, or other developments will not result
in a compromise or breach of the algorithms we use to protect our customers'
transaction data or our software vendors' products. Anyone who is able to
circumvent our security measures could misappropriate proprietary information or
cause interruptions in our operations. We may be required to incur significant
costs to protect against security breaches or to alleviate problems caused by
breaches. Any well-publicized compromise of security could deter people from
using the web to conduct transactions that involve transmitting confidential
information or downloading sensitive materials.
WE HAVE EXPERIENCED SIGNIFICANT GROWTH IN OUR BUSINESS IN RECENT PERIODS AND OUR
ABILITY TO MANAGE THIS GROWTH WILL AFFECT OUR BUSINESS.
Our ability to successfully offer products and services and implement our
business plan in a rapidly evolving market requires an effective planning and
management process. We have increased, and plan to continue to increase, the
scope of our operations. These expansion efforts could be expensive and put a
strain on management, and if we do not manage growth properly, it could
adversely affect our business. Our headcount has grown and will continue to grow
substantially. In particular, we will need to expand our technology
infrastructure, which will include making certain key employee hires in product
development. These hires historically have been difficult and we can not assure
you that we will be able to successfully attract and retain a sufficient number
of qualified personnel.
WE NEED TO EXPAND OUR MANAGEMENT SYSTEMS AND CONTROLS IN ORDER TO SUPPORT OUR
ANTICIPATED GROWTH.
Our growth has placed, and our anticipated future growth will continue to
place, a significant strain on our management systems and controls. We cannot
assure you that we will be able to adequately expand our technology resources to
support our anticipated growth. We expect that we will need to continue to
improve our financial and managerial controls and reporting systems and
procedures. Furthermore, we expect that we will be required to manage multiple
relationships with various software vendors, customers and other third parties.
WE MAY NOT BE ABLE TO FUND THE HIRING AND RETENTION OF SALES, MARKETING AND
SUPPORT PERSONNEL THAT WE NEED TO SUCCEED.
If we lack the funds to hire and retain sufficient numbers of sales,
marketing and support personnel, our business and results of operations would be
adversely affected. Competition for qualified sales and marketing and support
personnel is intense, and we might not be able to hire and retain sufficient
numbers of qualified sales and marketing and support personnel. We need to
substantially expand our sales operations and marketing efforts, both
domestically and internationally, in order to increase market awareness and
sales of the products and services we offer. These products and services require
a sophisticated sales effort targeted at several people within the information
technology departments of our prospective customers. If we are unable to fund
the hiring and retention of a sufficient number of qualified sales and marketing
personnel, our business and growth prospects will be materially adversely
affected.
We currently have a small customer service and support organization and will
need to increase our staff to support new customers and the expanding needs of
existing customers. Hiring customer service
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and support personnel is very competitive in our industry due to the limited
number of people available with the necessary technical skills and understanding
of the Internet. Because of our financial constraints and the limited
availability of such personnel, we cannot assure you that we will be able to
hire and retain sufficient numbers of qualified customer service and support
personnel.
OUR EXECUTIVE OFFICERS AND CERTAIN KEY PERSONNEL ARE CRITICAL TO OUR BUSINESS
AND THESE OFFICERS AND KEY PERSONNEL MAY NOT REMAIN WITH US IN THE FUTURE.
Our future success depends upon the continued service of our executive
officers and other key technology, sales, marketing and support personnel and
most of our officers or key employees are not bound by an employment agreement
for any specific term. If we lost the services of one or more of our key
employees, or if one or more of our executive officers or employees decided to
join a competitor or otherwise compete directly or indirectly with us, this
could have a significant adverse effect on our business. In particular, the
services of Peter Jackson, Chief Executive Officer, Paul Martinelli, Chief
Technology Officer, Mark Long, Executive Vice President of Strategic
Development, Don Freed, Executive Vice President and Chief Financial Officer,
and Frost Prioleau, Executive Vice President for Products and Services, would be
difficult to replace.
OUR ACQUISITIONS COULD BE DIFFICULT TO INTEGRATE, DISRUPT OUR BUSINESS, DILUTE
STOCKHOLDER VALUE AND ADVERSELY AFFECT OUR OPERATING RESULTS.
We currently intend to make additional investments in complementary
companies, services and technologies. These acquisitions and investments could
disrupt our ongoing business, distract our management and employees and increase
our expenses. If we acquire another company, we could face difficulties in
assimilating that company's personnel and operations. In addition, the key
personnel of the acquired company may decide not to work for us. Acquisitions of
additional services or technologies also involve risks of incompatibility and
the need for integration into our existing services and marketing, sales and
support efforts. We may be required to spend additional time or money on
integration which would otherwise be spent on developing our business and
services. If we do not integrate our technology effectively or if management and
technical staff spend too much time on integration issues, it could harm our
business, financial condition and operating results. Also, if we finance the
acquisitions by incurring debt or issuing equity securities, this could dilute
our existing stockholders. Any amortization of goodwill or other assets, or
other charges resulting from the costs of such acquisitions, could adversely
affect our operating results.
WE FACE RISKS OF CLAIMS FROM THIRD PARTIES FOR INTELLECTUAL PROPERTY
INFRINGEMENT THAT COULD ADVERSELY AFFECT OUR BUSINESS.
Our services operate in part by making software products and other content
available to our customers. This creates the potential for claims to be made
against us, either directly or through contractual indemnification provisions
with vendors. Any claims could result in costly litigation and be time-consuming
to defend, divert management's attention and resources, cause delays in
releasing new or upgrading existing services or require us to enter into royalty
or licensing agreements. These claims could be made for defamation, negligence,
patent, copyright or trademark infringement, personal injury, invasion of
privacy or other legal theories based on the nature, content or copying of these
materials.
Litigation regarding intellectual property rights is common in the Internet
and software industries. We expect that Internet technologies and software
products and services may be increasingly subject to third-party infringement
claims as the number of competitors in our industry segment grows and the
functionality of products in different industry segments overlaps. There can be
no assurance that our services do not infringe on the intellectual property
rights of third parties.
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In addition, we may be involved in litigation involving the software of
third party vendors that we electronically distribute. Royalty or licensing
agreements, if required, may not be available on acceptable terms, if at all. A
successful claim of infringement against us and our failure or inability to
license the infringed or similar technology could adversely affect our business.
Although we carry general liability insurance, our insurance may not cover all
potential claims or may not be adequate to protect us from all liability that
may be imposed.
We take steps to verify that our INTRAWARE DEPLOYMENT customers that
download third-party software from our web site are entitled to deploy and use
that software. However, there can be no assurance that this verification
procedure will help us defend against claims by, or protect us against liability
to, the owners of copyrights in that third-party software.
Our success and ability to compete are substantially dependent upon our
internally developed technology, which we protect through a combination of
patent, copyright, trade secret and trademark law. We are aware that certain
other companies are using or may have plans to use the name "Intraware" as a
company name or as a trademark or service mark. While we have received no notice
of any claims of trademark infringement from any of those companies, we cannot
assure you that certain of these companies may not claim superior rights to
"Intraware" or to other marks we use. Despite our efforts to protect our
proprietary rights, unauthorized parties may attempt to copy or otherwise obtain
and use our services or technology and we cannot be certain that the steps we
have taken will prevent misappropriation of our technology.
WE MAY BE REQUIRED TO REDEEM OR PAY SUBSTANTIAL PENALTIES TO THE HOLDERS OF THE
SERIES A, B AND C PREFERRED STOCK AND RELATED WARRANTS IF SPECIFIC EVENTS OCCUR.
Under our agreements with the holders of the Series A, B and C preferred
stock and the related warrants, we are required to redeem or pay substantial
penalties to those holders under specific circumstances, including, among
others:
- nonpayment of dividends on the Series A, B and C preferred shares in a
timely manner;
- failure to deliver shares of our common stock upon conversion of the
Series A, B and C preferred shares or upon exercise of the related
warrants after a proper request;
- nonpayment of the redemption price at of the Series A, B and C preferred
shares if we elect to redeem these shares at maturity;
- failure to comply with financial covenants regarding cash balances and
cash burn rates; or
- failure to have a registration statement covering the shares of common
stock into which the Series A, B and C preferred shares and related
warrants are exercisable for, filed with the SEC on or before
November 10, 2000 and effective by January 10, 2001, or after being
declared effective, the unavailability of the registration statement to
cover the resale of that common stock.
POTENTIAL YEAR 2000 PROBLEMS WITH OUR INTERNAL OPERATING SYSTEMS OR THE SOFTWARE
PRODUCTS THAT WE RESELL COULD ADVERSELY AFFECT OUR BUSINESS.
Although to date we have not experienced any material problems attributable
to the year 2000 problem with respect to our software products and internal
systems, it is possible that software we distribute could contain undetected
errors or defects associated with year 2000 date functions that may result in
material costs or liabilities to us in the future. Moreover, the software we
distribute interacts directly and indirectly with a large number of third-party
hardware and software systems, each of which may contain or introduce undetected
errors or defects. We are unable to predict to what extent our business may be
affected if the software we distribute or the systems that operate in
conjunction with
9
<PAGE>
that software experience a material year 2000 related failure. Any year 2000
defect in the software we distribute, or the software and hardware systems with
which it operates, as well as any year 2000 errors caused by older non-current
products that were not upgraded by our customers, could expose us to litigation
that could require us to incur significant costs in defending the litigation or
expose us to the risk of significant damages. The risks of this litigation may
be particularly acute due to the mission-critical applications for which many of
the products we distribute are used.
OUR MARKET MAY UNDERGO RAPID TECHNOLOGICAL CHANGE AND OUR FUTURE SUCCESS WILL
DEPEND ON OUR ABILITY TO MEET THE CHANGING NEEDS OF OUR INDUSTRY.
Our market is characterized by rapidly changing technology, evolving
industry standards and frequent new product announcements. To be successful, we
must adapt to our rapidly changing market by continually improving the
performance, features and reliability of our services. We could incur
substantial costs to modify our services or infrastructure in order to adapt to
these changes. Our business could be adversely affected if we incur significant
costs without adequate results, or find ourselves unable to adapt rapidly to
these changes.
A DISASTER COULD SEVERELY DAMAGE OUR OPERATIONS.
We do not have a complete disaster recovery plan in effect and do not have
fully redundant systems for our service at an alternate site. A disaster could
severely damage our business and results of operations because our service could
be interrupted for an indeterminate length of time. Our operations depend upon
our ability to maintain and protect our computer systems, all of which are
located at our facility in Orinda, California and at an offsite location managed
by a third party in Santa Clara, California. Orinda and Santa Clara exist on or
near known earthquake fault zones. Although the outside facility, which hosts
our primary web and database servers, is designed to be fault tolerant, the
system is vulnerable to damage from fire, floods, earthquakes, power loss,
telecommunications failures, and similar events. Although we maintain insurance
against fires, floods, earthquakes and general business interruptions, there can
be no assurance that the amount of coverage will be adequate in any particular
case.
CHANGES IN THE LAWS AND OTHER GOVERNMENT REGULATIONS MAY ADVERSELY AFFECT
BUSINESS.
If State and local tax laws are changed to impose sales tax on sales of
electronically delivered software our business will be materially and adversly
affected.
More generally, the law governing Internet transactions remains largely
unsettled, even in areas where there has been some legislative action. The
adoption or modification of laws or regulations relating to the Internet could
adversely affect our business by increasing our costs and administrative
burdens. It may take years to determine whether and how existing laws such as
those governing intellectual property, privacy, libel and taxation apply to the
Internet.
Laws and regulations directly applicable to communications or commerce over
the Internet are becoming more prevalent. In its last two sessions, the United
States Congress adopted Internet laws regarding children's privacy, copyrights
and taxation. It appears that additional laws and regulations regarding
protection of privacy on the Internet will be adopted at the state and federal
levels in the United States. The European Union has enacted its own data
protection and privacy directive, which required all 15 European Union Member
States to implement laws relating to the processing and transmission of personal
data by November 25, 1998. We must comply with these new regulations in both
Europe and the United States, as well as any other regulations adopted by other
countries where we may do business. The growth and development of the market for
online commerce may prompt calls for more stringent consumer protection laws,
both in the United States and abroad. Compliance with any newly adopted laws may
prove difficult for us and may negatively affect our business.
10
<PAGE>
YOU SHOULD NOT RELY ON FORWARD-LOOKING STATEMENTS BECAUSE THEY ARE INHERENTLY
UNCERTAIN.
You should not rely on forward-looking statements in this Registration
Statement. This Registration Statement also contains forward-looking statements
that involve risks and uncertainties. We use words such as "anticipates,"
"believes," "plans," "expects," "future," "intends" and similar expressions to
identify such forward-looking statements. You should not place undue reliance on
these forward-looking statements, which apply only as of the date of this
Registration Statement. Our actual results could differ materially from those
anticipated in these forward-looking statements for many reasons, including the
risks faced by us described below and elsewhere in this Registration Statement.
11
<PAGE>
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
In addition to the other information contained in this prospectus, investors
should carefully consider the risk factors disclosed in this prospectus,
including those beginning on page 6, in evaluating an investment in the common
stock issuable in this Registration Statement. This prospectus and the documents
incorporated herein by reference include "forward-looking statements" within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act. All statements other than statements of historical fact are
"forward-looking statements" for purposes of these provisions, including any
projections of earnings, revenues or other financial items, any statements of
the plans and objectives of management for future operations, any statements
concerning proposed new products or services, any statements regarding future
economic conditions or performance, and any statement of assumptions underlying
any of the foregoing. In some cases, forward-looking statements can be
identified by the use of terminology such as "may", "will", "expects", "plans",
"anticipates", "estimates", "potential", or "continue" or the negative thereof
or other comparable terminology. Although Intraware believes that the
expectations reflected in the forward-looking statements contained herein and in
such incorporated documents are reasonable, there can be no assurance that such
expectations or any of the forward-looking statements will prove to be correct,
and actual results could differ materially from those projected or assumed in
the forward-looking statements. Intraware' future financial condition and
results of operations, as well as any forward-looking statements, are subject to
inherent risks and uncertainties, including but not limited to the risk factors
set forth above and for the reasons described elsewhere in this prospectus. All
forward-looking statements and reasons why results may differ included in this
prospectus are made as of the date hereof, and Intraware assumes no obligation
to update any such forward-looking statement or reason why actual results might
differ.
12
<PAGE>
USE OF PROCEEDS
We will not receive any proceeds from the sale by the selling
securityholders of the common stock.
13
<PAGE>
SELLING SECURITYHOLDERS
The following table contains information as of November 1, 2000, with
respect to the selling securityholders and the common stock beneficially owned
by the selling securityholders that may be offered using this prospectus.
<TABLE>
<CAPTION>
NUMBER OF SHARES NUMBER OF SHARES
BENEFICIALLY BENEFICIALLY
OWNED PRIOR TO THE NUMBER OF OWNED AFTER THE
OFFERING (1) SHARES THAT MAY OFFERING (2)
--------------------- BE SOLD IN ---------------------
NAME NUMBER PERCENTAGE THE OFFERING NUMBER PERCENTAGE
---- -------- ---------- --------------- -------- ----------
<S> <C> <C> <C> <C> <C>
Edison Venture Fund IV, LP............. 395,871 1.43% 197,936 197,935 *
Janice C. Pini......................... 253,621 * 63,405 190,216 *
Laurance W. Shoup...................... 253,621 * 63,405 190,216 *
Glen F. Chatfield...................... 70,159 * 35,080 35,079 *
Neal M. Pollon......................... 70,159 * 35,080 35,079 *
William Connor......................... 50,725 * 25,363 25,362 *
Mondechi Gal-Or........................ 26,631 * 13,316 13,315 *
Lisa Nydick............................ 23,537 * 5,884 17,653 *
Carmel Associates, L.L.P............... 18,116 * 9,058 9,058 *
PNC Investment Corp.................... 6,927 * 3,464 3,463 *
William E. Swauger..................... 26 * 7 19 *
</TABLE>
------------------------
(1) Calculated based on Rule 13d-3(d)(i) of the Exchange Act using 27,514,500
shares of common stock outstanding as of November 1, 2000.
(2) Assumes the sale of all shares that may be sold in the offering.
* less than one percent.
14
<PAGE>
PLAN OF DISTRIBUTION
We will not receive any of the proceeds of the sale of the common stock
offered by this prospectus. The common stock may be sold from time to time to
purchasers:
- directly by the selling securityholders;
- through underwriters, broker-dealers or agents who may receive
compensation in the form of discounts, concessions or commissions from the
selling securityholders or the purchasers of the common stock.
Selling securityholders and any broker-dealers or agents who participate in
the distribution of the common stock may be deemed to be "underwriters." As a
result, any profits on the sale of the common stock by the selling
securityholders and any discounts, commissions or concessions received by any
such broker-dealers or agents might be deemed to be underwriting discounts and
commissions under the Securities Act. If a selling securityholder is deemed an
underwriter, such selling securityholder may be subject to certain statutory
liabilities of, including, but not limited to, Sections 11, 12 and 17 of the
Securities Act and Rule 10b-5 under the Exchange Act.
If the common stock is sold through underwriters or broker-dealers, the
selling securityholders will be responsible for underwriting discounts or
commissions or agent's commissions.
The common stock may be sold in one or more transactions at:
- fixed prices;
- prevailing market prices at the time of sale;
- varying prices determined at the time of sale; or
- negotiated prices.
These sales may be effected in transactions:
- on any national securities exchange or quotation service on which the
common stock may be listed or quoted at the time of the sale, including
the Nasdaq National Market;
- in the over-the-counter market;
- in transactions otherwise than on such exchanges or services or in the
over-the-counter market;
- through the writing or purchase of non-traded and exchange-traded options;
- by pledge to secure debts and other obligations;
- in hedge transactions and in settlement of other transactions; or
- in a combination of any of the above transactions.
These transactions may include block transactions or crosses. Crosses are
transactions in which the same broker acts as an agent on both sides of the
trade.
In connection with sales of the common stock or otherwise, the selling
securityholders may enter into hedging transactions with broker-dealers. These
broker-dealers may in turn engage in short sales of the common stock in the
course of hedging their positions. The selling securityholders may also sell the
common stock short and deliver common stock to close out short positions, or
loan or pledge common stock to broker-dealers that in turn may sell the common
stock.
To our knowledge, there are currently no plans, arrangements or
understandings between any selling securityholder and any underwriter,
broker-dealer or agent regarding the sale of the common stock by the selling
securityholder. The selling securityholders may elect not to sell some or all of
the
15
<PAGE>
common stock offered by them pursuant to this prospectus. In addition, we cannot
assure you that the selling securityholders will not transfer, devise or gift
the common stock by other means not described in this prospectus.
Our common stock trades on the Nasdaq National Market under the symbol
"ITRA."
There can be no assurance that the selling securityholders will sell any or
all of the common stock pursuant to this prospectus. In addition, any common
stock covered by this prospectus that qualify for sale pursuant to Rule 144 or
Rule 144A of the Securities Act may be sold under Rule 144 or Rule 144A rather
than pursuant to this prospectus.
Pursuant to the Registration Rights and Lock-Up Agreement, dated as of
July 12, 2000, with Janus Technologies, Inc., we and the selling securityholders
will be indemnified by each other, respectively against certain liabilities,
including certain liabilities under the Securities Act, or will be entitled to
contribution in connection with these liabilities.
We have agreed to pay substantially all of the expenses incidental to the
registration, offering and sale of the common stock to the public other than
commissions, fees and discounts of underwriters, brokers, dealers and agents.
LEGAL MATTERS
The validity of the issuance of Intraware's securities offered by this
prospectus will be passed upon for Intraware, Inc. by Wilson Sonsini Goodrich &
Rosati, Professional Corporation, Palo Alto, California.
EXPERTS
The financial statements of Intraware, Inc. as of February 29, 2000,
February 28, 1999 and for each of the years in the three-year period ended
February 29, 2000 incorporated in this Prospectus by reference to the Annual
Report on Form 10-K for the year ended February 29, 2000 of Intraware, Inc. have
been so incorporated in reliance upon the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
accounting and auditing.
16
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the Securities
Exchange Commission (the "Commission"), in accordance with the Securities
Exchange Act of 1934. You may read and copy our reports, proxy statements and
other information filed by us at the public reference facilities of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's Regional Offices': Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511 and 7 World Trade
Center, 13th Floor, New York, New York 10048. Copies of such materials can be
obtained at prescribed rates from the Public Reference Section of the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the Commission at
1-800-SEC-0330 for further information about the public reference rooms. Our
reports, proxy statements and other information filed with the Commission are
available to the public over the Internet at the Commission's World Wide Web
site at http://www.sec.gov.
The Commission allows us to "incorporate by reference" into this prospectus
the information we filed with the Commission. This means that we can disclose
important information by referring you to those documents. The information
incorporated by reference is considered to be a part of this prospectus.
Information that we file later with the Commission will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made by us with the Commission under Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act until this offering is complete:
- Our Annual Report on Form 10-K for the fiscal year ended February 29, 2000
as filed with the Commission on May 26, 2000 (File No. 000-25249);
- Our Quarterly Report on Form 10-Q for the fiscal quarter ended May 31,
2000 as filed with the Commission on July 17, 2000;
- Our Quarterly Report on Form 10-Q for the fiscal quarter ended August 31,
2000 as filed with the Commission on October 16, 2000;
- Our Current Report on Form 8-K as filed with the Commission on July 3,
2000;
- Our Current Report on Form 8-K as filed with the Commission on July 27,
2000;
- Our Current Report on Form 8-K as filed with the Commission on October 7,
1999; and
- The description of our Common Stock which is contained in our Registration
Statement on Form 8-A filed with the Commission on January 8, 1999
pursuant to Section 12 of the Exchange Act, and any description of any of
our securities 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.
You may also request a copy of these filings, at no cost, by contacting us
at the following address:
Investor Relations Department
Intraware, Inc.
2000 Powell Street
Suite 140
Emeryville, CA 94608
(925) 253-4500
You should rely only on the information incorporated by reference or
provided in this prospectus or a prospectus supplement or amendment. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume the information in this prospectus is accurate
as of any date other than the date on the front of those documents.
17
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses to be paid by the
Registrant in connection with this offering. All amounts are estimates except
for the registration fee:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 872.58
Accounting fees and expenses................................ 5,000.00
Legal fees and expenses..................................... 10,000.00
Miscellaneous............................................... 127.42
----------
* Total................................................... $16,000.00
==========
</TABLE>
------------------------
* None of the expenses listed above will be borne by the selling securityholder.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS OF INTRAWARE
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933. Article IX of our amended
and restated certificate of incorporation, as amended, and Article VI of our
amended and restated bylaws provide for indemnification of our directors,
officers, employees and other agents to the maximum extent permitted by Delaware
law. In addition, we have entered into indemnification agreements with our
officers and directors.
ITEM 16. EXHIBITS
The following exhibits are filed herewith or incorporated by reference
herein:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
--------------------- ------------------------------------------------------------
<C> <S>
2.1 Agreement and Plan of Reorganization, dated June 9, 2000, as
amended, between the Registrant and Janus Technologies, Inc.
(1)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1 Registration Rights and Lock-Up Agreement dated as of July
12, 2000 among Registrant and the Shareholders of Janus
Technologies, Inc. (1)
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).
24.1 Power of Attorney of certain directors and officers of
Intraware, Inc. (see page II-4 of this Form S-3).
</TABLE>
------------------------
(1) Incorporated by reference to exhibits filed with the Registrant's Form 8-K
(File No. 000-25249) filed with the Commission July 27, 2000.
II-1
<PAGE>
ITEM 17. UNDERTAKINGS
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:
(a) To include any prospectus required by Section 10(a)(3) of the Securities
Act,
(b) 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. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement,
(c) 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 clauses (a) and (b) do not apply if the information
required to be included in a post-effective amendment by such clauses is
contained in periodic reports filed with or furnished to the Securities and
Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed 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.
(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.
(4) That, for purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in this
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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, 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 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 and will be governed by the final adjudication of such issue.
II-2
<PAGE>
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933,
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 of
1933, 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-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Emeryville, State of California on November 9, 2000.
<TABLE>
<S> <C> <C>
INTRAWARE, INC.
By: /s/ JOHN J. MOSS
-----------------------------------------
John J. Moss
GENERAL COUNSEL AND SECRETARY
</TABLE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Peter H. Jackson and Donald M. Freed, and
each of them acting individually, as his attorney-in-fact, each with full power
of substitution, for him in any and all capacities, to sign any and all
amendments to this Registration Statement on Form S-3, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or any substitute, may do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
President, Chief Executive
/s/ PETER H. JACKSON Officer and Director
------------------------------------------- (Principal Executive November 9, 2000
Peter H. Jackson Officer)
/s/ DONALD M. FREED
------------------------------------------- Chief Financial Officer November 9, 2000
Donald M. Freed
/s/ LAURENCE M. BAER
------------------------------------------- Director November 9, 2000
Laurence M. Baer
/s/ JOHN V. BALEN
------------------------------------------- Director November 9, 2000
John V. Balen
/s/ MARY ANN BYRNES
------------------------------------------- Director November 9, 2000
Mary Ann Byrnes
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ CHARLES G. DAVIS, JR.
------------------------------------------- Director November 9, 2000
Charles G. Davis, Jr.
/s/ MARK B. HOFFMAN
------------------------------------------- Director November 9, 2000
Mark B. Hoffman
/s/ RONALD E. F. CODD
------------------------------------------- Director November 9, 2000
Ronald E. F. Codd
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ JOHN J. MOSS
--------------------------------------
John J. Moss November 9, 2000
ATTORNEY-IN-FACT
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
--------------------- ------------------------------------------------------------
<C> <S>
2.1 Agreement and Plan of Reorganization, dated June 9, 2000, as
amended, between the Registrant and Janus Technologies, Inc.
(1)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.1 Registration Rights and Lock-Up Agreement dated as of July
12, 2000 among Registrant and the Shareholders of Janus
Technologies, Inc. (1)
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).
24.1 Power of Attorney of certain directors and officers of
Intraware, Inc. (see page II-4 of this Form S-3).
</TABLE>
------------------------
(1) Incorporated by reference to exhibits filed with the Registrant's Form 8-K
(File No. 000-25249) filed with the Commission July 27, 2000.
