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EXHIBIT 5.1
[WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL CORPORATION LETTERHEAD]
January 16, 2001
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 (the "Registration Statement") filed by you
with the Securities and Exchange Commission (the "Commission") on January 17,
2001, under the Securities Act of 1933, as amended (the "Securities Act"). The
Registration Statement relates to the 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 750,000 shares of common
stock, par value $.0001 per share (the "Common Stock") and 346,968 shares of
Common Stock issuable upon exercise of 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) executed copies of the
Redemption and Amendment Agreements, dated January 10, 2001, between the Company
and certain investors (the "Redemption Agreements"); (iii) executed copies of
the Registration Rights Agreements, dated January 10, 2001, between the Company
and certain investors (the "Rights Agreements"); (iv) an executed copy of each
of the warrants (the "Warrants"); (v) the Amended and Restated Certificate of
Incorporation of the Company, as currently in effect; (vi) the Amended and
Restated Bylaws of the Company, as currently in effect; and (vii) certain
resolutions of the Board of Directors of the Company relating to, among other
things, the creation, issuance and sale of the Common Stock and amendments of
the Warrants in the manner contemplated by the Redemption Agreements (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 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
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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 the
Common Stock has been duly authorized and issued and the Warrant Shares,
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 Warrants, 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.
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
