<PAGE>
As filed with the Securities and Exchange Commission on January 18, 2001
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)
------------------------
<TABLE>
<S> <C> <C>
DELAWARE 25 ORINDA WAY 68-0389976
(STATE OF INCORPORATION) ORINDA, CA 94563 (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
</TABLE>
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
1996 STOCK OPTION PLAN
1998 DIRECTOR OPTION PLAN
JANUS TECHNOLOGIES, INC. 1997 STOCK OPTION PLAN
------------------------
(FULL TITLE OF THE PLANS)
JOHN J. MOSS
GENERAL COUNSEL
25 ORINDA WAY
ORINDA, CA 94563
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
------------------------
COPY TO:
John L. 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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CALCULATION OF REGISTRATION FEE
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<CAPTION>
==================================================================================================================================
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO TO BE OFFERING PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE PRICE FEE
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<S> <C> <C> <C> <C>
1996 Stock Option Plan (as amended September 25,
2000) 1,000,000 $3.22(2) $3,220,000.00(2) $805.00
----------------------------------------------------------------------------------------------------------------------------------
1998 Director Option Plan (as amended September 200,000 $3.22(2) $644,000.00(2) $161.00
25, 2000)
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Janus Technologies, Inc. 1997 Stock Option Plan 219,348 $2.9230(3) $641,154.20(3) $160.29
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Total $1,126.29
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
outstanding shares of Common Stock.
(2) Estimated pursuant to Rule 457(c) under the Securities Act (of 1933, as
amended (the `Securities Act') solely for the purpose of calculating the
total registration fee. As the price at which options are to be granted in
the future is not currently determined, computation is based pursuant to
Rule 457(c) of the Securities Act whereby the per share price is the
average between the high and low price reported in the Nasdaq National
Market on January 16, 2001, which average was $3.22.
(3) Computed in accordance with Rule 457(h) under the Securities Act of 1933,
as amended (the `Securities Act'), solely for the purpose of calculating
the registration fee. With respect to 219,348 shares subject to outstanding
options to purchase Common Stock under the plan, the proposed maximum
offering price per share is equal to the weighted average exercise price of
$2.9230 per share pursuant to Rule 457(h) under the Securities Act.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
There are hereby incorporated by reference into this Registration
Statement and into the Prospectuses relating to this Registration Statement
pursuant to Rule 428 the following documents and information previously filed
with the Securities and Exchange Commission (the "Commission"):
1. The Registrant's latest Annual Report on Form 10-K, as amended
on Form 10-K/A, for the year ended February 29, 2000, filed
pursuant to Section 13(a) of the Securities Exchange Act of
1934, as amended ("the Exchange Act").
2. 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 documents referred to in (1) above.
3. The description of Registrant's Common Stock contained in
Registrant's Registration Statement on Form 8-A filed with the
Commission on December 8, 1999.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof, and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which registers all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or a corporation's board of directors to grant, indemnification 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.
The registrant's Bylaws provide for indemnification of its directors, officers,
employees and other agents to the maximum extent permitted by Delaware General
Corporation Law. In addition, the registrant maintains liability insurance for
its directors and principal executive officers, including insurance against
liabilities under the Securities Act of 1933.
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
II-1
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ITEM 8. EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER DOCUMENT
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation ("WSGR")
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of WSGR (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 4)
99.1 1996 Stock Option Plan (as amended September 25, 2000) (1)
99.2 1998 Director Option Plan (as amended September 25, 2000) (2)
99.3 Janus Technologies, Inc. 1997 Stock Option Plan
--------------------------------------------------------------------------------
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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 10.4 of Intraware's Registration
Statement on Form S-1 (Registration No. 333-69261) which was declared
effective on February 25, 1998.
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 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.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended (the "Securities Act"), 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.
(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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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 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
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>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Intraware, Inc., 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 on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Orinda, State of
California, on the 18th day of January, 2001.
INTRAWARE, INC.
By: /s/ Peter H. Jackson
------------------------------------------
Peter H. Jackson
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Peter H. Jackson and Donald M. Freed and
each of them, acting individually, as his attorney-in-fact, with full power of
substitution, for him and in any and all capacities, to sign any and all
amendments to this Registration Statement on Form S-8 (including post-effective
amendments) and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorney to any and all amendments to the Registration Statement on Form S-8.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------------------------------------------- --------------------------------------------- -----------------------
<S> <C> <C>
/s/ Peter H. Jackson
--------------------------------------------- President, Chief Executive Officer and
Peter H. Jackson Director (Principal Executive Officer) January 18, 2001
Executive Vice President and Chief
/s/ Donald M. Freed Financial Officer (Principal Financial January 18, 2001
--------------------------------------------- and Accounting Officer)
Donald M. Freed
/s/ Mark B. Hoffman
---------------------------------------------
Mark B. Hoffman Chairman of the Board of Directors January 18, 2001
/s/ Frost R.R. Prioleau
---------------------------------------------
Frost R.R. Prioleau President and Director January 18, 2001
/s/ Laurence M. Baer
---------------------------------------------
Laurence M. Baer Director January 18, 2001
/s/ John V. Balen
---------------------------------------------
John V. Balen Director January 18, 2001
/s/ Ronald E.F. Codd
---------------------------------------------
Ronald E.F. Codd Director January 18, 2001
</TABLE>
II-3
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT
------------- ----------------------------------------------------------------
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation ("WSGR")
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of WSGR (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 4)
99.1 1996 Stock Option Plan (as amended September 25, 2000) (1)
99.2 1998 Director Option Plan (as amended September 25, 2000) (2)
99.3 Janus Technologies, Inc. 1997 Stock Option Plan
--------------------------
</TABLE>
(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 10.4 of Intraware's Registration
Statement on Form S-1 (Registration No. 333-69261) which was declared
effective on February 25, 1998.
