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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 17, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
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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<S> <C> <C>
DELAWARE 68-0389976
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
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)
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JOHN MOSS
GENERAL COUNSEL
25 ORINDA WAY
ORINDA, CA 94563
(925) 253-4500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
ADAM R. DOLINKO, 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: From time
to time after this registration statement becomes effective.
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, 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. / /
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) SECURITY(2) PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, $0.0001 par value per
share shares......................... 1,096,968 shares $3.22 $3,532,237 $884
</TABLE>
(1) Shares of Common Stock that may be offered pursuant to this registration
statement include 346,968 shares that may be issued upon the exercise of
warrants.
(2) 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 $3.22, the average of the high and low reported sales prices
of the Registrant's common stock on the Nasdaq National Market on
January 16, 2001.
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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 SECURITIES AND EXCHANGE 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 JANUARY 17, 2001
INTRAWARE, INC.
1,096,968 Shares
Common Stock
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This prospectus relates to 1,096,968 shares of our common stock which may be
sold from time to time by the selling securityholders identified in this
prospectus. Of the shares offered by this prospectus, 346,968 shares of common
stock are issuable upon exercise of warrants.
While we may receive proceeds upon the exercise of the warrants, we will not
receive any proceeds from the sale of the shares offered by this prospectus.
Our common stock is quoted on the Nasdaq National Market under the symbol
"ITRA". On January 16, 2001 the last reported sale price for our common stock on
the Nasdaq National Market was $3.25 per share.
Investment in the securities involves a high degree of risk. See "Risk
Factors" beginning on page 2 of this prospectus.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS JANUARY , 2001.
<PAGE>
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. The selling
securityholders will not make an offer of the shares of our common stock in any
state where the offer is not permitted. You should not assume that the
information in this prospectus or any prospectus supplement is accurate as of
any date other than the date on the front of those documents.
TABLE OF CONTENTS
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<S> <C>
THE COMPANY................................................. 1
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS............ 1
RISK FACTORS................................................ 2
USE OF PROCEEDS............................................. 10
SELLING SECURITYHOLDERS..................................... 11
PLAN OF DISTRIBUTION........................................ 12
LEGAL MATTERS............................................... 14
EXPERTS..................................................... 14
WHERE YOU CAN FIND MORE INFORMATION......................... 14
</TABLE>
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THE COMPANY
We are a leading provider of information technology management solutions.
Our services allow information technology professionals to purchase, update and
manage their business software online. We provide an extensive selection of
business software and industry leading electronic software delivery, update, and
asset management systems.
Intraware, Inc. was incorporated in Delaware on August 14, 1996.
Our corporate offices are located at 25 Orinda Way, Orinda, California
94563. Our telephone number at that location is (925) 253-4500.
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 in
evaluating an investment in the common stock issued and issuable upon exercise
of warrants. 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's
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 below 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.
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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 OUR 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.
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
November 30, 2000, we had approximately $15.1 million of cash and cash
equivalents and $5.1 million in short-term marketable securities. In January
2001, we paid $7.5 million as part of our redemption of the Series A, Series B
and Series C preferred stock. In January 2001, we are also due to receive
$5.2 million as part of our issuance of new Series A preferred stock. In
addition, we expect to be required to maintain $1.8 million as non-available
funds as a condition of any renewal of our commercial bank line of credit. As of
November 30, 2000, our available credit under existing lines of credit was
$1.7 million. Our commercial bank line of credit expired on January 12, 2001,
and we currently owe to that bank $3.2 million in callable debt as well as
$1.8 million under irrevocable letters of credit. There can be no assurance that
this line of credit will be timely renewed or that the bank will not require
immediate repayment of the callable debt. There also can be no assurance that we
will be able to achieve the revenue and gross margin objectives necessary to
achieve positive cash flow or profitability without obtaining additional
financing.
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 at least
through our fiscal quarter ending November 30, 2001 and may not ever become
profitable in the future. We incurred net losses attributable to common
stockholders 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 $12.2 million
and $35.7 million for the three months and nine months ended November 30, 2000,
respectively. As of November 30, 2000, we had an accumulated deficit of
approximately $85.0 million. Net losses have increased for most of our quarters
since inception and we cannot assure you this trend will not continue. 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 November 30, 2000, we generated approximately
81.6% of our software product revenues from the sale of the Sun/Netscape
Alliance's iPlanet software, and approximately 25.4% of our online service
revenues from the outsourcing of INTRAWARE SUBSCRIBENET services to the
Sun/Netscape Alliance. As a result, transactions with the Sun/
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Netscape Alliance and the sale of iPlanet products accounted for approximately
70.3% of our total net revenues in the three months ended November 30, 2000. Our
agreement for resale of iPlanet products will expire on February 28, 2001, 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 materially adversely affected.
We provide online software update and license management services to
Sun/Netscape Alliance customers through our INTRAWARE SUBSCRIBENET service under
an agreement that expires on June 30, 2003. We cannot assure you that this
agreement will be extended after June 20, 2003 or that it will not be terminated
after June 30, 2002. Substantially all of our INTRAWARE SUBSCRIBENET 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 SUBSCRIBENET 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 will be below the expectations of public
market analysts and investors and as a result, the price of our common stock
will 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 technology and the products of our
software vendors;
- the timing of sales of our online services and technology 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;
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- 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;
- 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 higher margin INTRAWARE ASSET
MANAGEMENT products and INTRAWARE SUBSCRIBENET services. We have experienced and
may continue to experience one or more quarters of reduced sales of third-party
software products. Any shortfall in our gross revenues could affect the market
price of our common stock.
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 ONLINE SERVICES AND TECHNOLOGY MAY NOT BE ABLE TO GENERATE ANTICIPATED
REVENUES.
Our strategy for achieving profitability assumes significant revenue growth
from our online services and technology, principally our INTRAWARE ASSET
MANAGEMENT products and INTRAWARE SUBSCRIBENET service. However, we have only
recently acquired our INTRAWARE ASSET MANAGEMENT products, and therefore have a
limited history on which to base sales projections for these products. We cannot
assure you that these products 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 SUBSCRIBENET service to their customers.
For the three months ended November 30, 2000, revenues from online services
and technology totaled only $6.8 million, which constituted 26% of our total
revenues for that period. These products and 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.
4
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Our current competitors include a number of companies offering one or more
solutions for the researching, evaluation, purchase, deployment, maintenance and
management 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.
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.
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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 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 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 RETAIN SALES, MARKETING AND SUPPORT PERSONNEL THAT WE NEED
TO SUCCEED.
If we fail to 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 retain sufficient numbers of qualified sales and
marketing and support personnel. The products and services we offer require a
sophisticated sales effort targeted at several people within the information
technology departments of our prospective customers. Retaining a sufficient
number of qualified sales personnel to complete these sales cycles will be
critical to our success.
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
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business. In particular, the services of Peter Jackson, Chief Executive Officer,
Frost Prioleau, President, Paul Martinelli, Chief Technology Officer and James
Brentano, Executive Vice President of Technology, 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.
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 end-users who use our INTRAWARE SUBSCRIBENET
service to 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
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"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.
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.
ADDITIONAL GOVERNMENT REGULATIONS MAY INCREASE OUR COSTS OF DOING BUSINESS.
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. 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 October 24, 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. We must also
comply with U.S. export controls on software generally and encryption technology
in particular. 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.
8
<PAGE>
USE OF PROCEEDS
We will not receive any proceeds from the sale by the selling
securityholders of common stock, although we may receive up to approximately
$700,000 upon exercise of the warrants.
WARRANTS
We issued warrants to purchase 346,968 shares of our common stock in
connection with the sale of shares of our Series A, Series B and Series C
preferred stock on June 30, 2000. The exercise price of those warrants, as of
January 16, 2000, is $2.03125 per share, subject to anti-dilution adjustments as
provided in the warrants.
REGISTRATION RIGHTS
The holders of the common stock covered by this prospectus and the warrants
are entitled to have 100% of the shares of common stock and the common stock
issued or issuable upon exercise of the warrants registered by us under the
terms of agreements between us and the holders of the common stock and the
warrants. We are also required to maintain the effectiveness of the registration
statement covering such shares of common stock until the earlier of:
- the date as of which the holders of the common stock and warrants may sell
all of the shares of common stock covered by such registration statement
under Rule 144(k) of the Securities Act, and
- the date on which the holders of the common stock and warrants have sold
all of the shares of common stock and the shares issued or issuable upon
exercise of the warrants.
We will bear all registration expenses, other than discounts and brokerage
commissions, with respect to this registration statement.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock is Computershare
Investor Services, LLC of California, 601 South Figueroa, 49th Floor, Los
Angeles, CA 90017. Its telephone number is (213) 362-4912.
10
<PAGE>
SELLING SECURITYHOLDERS
We are registering the shares covered by this prospectus in order to permit
the selling securityholders to offer the shares of common stock for resale from
time to time. Except for the ownership of our Series A, Series B and Series C
preferred shares (which have all been redeemed), and the common stock and
warrants, the selling securityholders have not had any material relationship
with us within the past three years.
The table below lists the selling securityholders and other information
regarding the beneficial ownership of the common stock by each of the selling
securityholders. The second column lists for each selling securityholder the
number of shares of common stock held, plus the number of shares of common stock
that would have been issuable to the selling securityholders on January 16, 2001
assuming the exercise of all warrants held by such selling securityholders on
that date, without regard to any limitations to exercise. The third column lists
the shares of common stock being offered by this prospectus by each selling
securityholder.
The selling securityholders may sell all, some or none of their shares in
this offering. See "Plan of Distribution."
<TABLE>
<CAPTION>
COMMON SHARES
BENEFICIALLY COMMON SHARES COMMON SHARES
OWNED OFFERED BY THIS OWNED AFTER
NAME OF SELLING SECURITY HOLDER PRIOR TO OFFERING PROSPECTUS OFFERING
------------------------------------------------- ----------------- --------------- -------------
<S> <C> <C> <C>
Fisher Capital Ltd.(1)........................... 426,640 373,428 53,212
Wingate Capital Ltd.(1).......................... 201,205 175,875 25,330
HFTP Investment L.L.C.(2)........................ 219,230 219,230 0
Marshall Capital Management, Inc.(3)............. 328,435 328,435 0
</TABLE>
------------------------
(1) Citadel Limited Partnership is the trading manager of each of Fisher
Capital Ltd. and Wingate Capital Ltd. (collectively, the "Citadel Entities")
and consequently has voting control and investment discretion over
securities held by the Citadel Entities. Kenneth C. Griffin indirectly
controls Citadel Limited Partnership. The ownership information for each of
the Citadel Entities does not include ownership information for the other
Citadel Entity. Citadel Limited Partnership, Kenneth C. Griffin and each of
the Citadel Entities disclaim ownership of the shares held by the other
Citadel Entity.
(2) Promethean Asset Management, LLC, a New York limited liability company
("Promethean"), serves as investment manager to HFTP Investment L.L.C.
("HFTP") and may be deemed to share beneficial ownership of the shares
beneficially owned by HFTP by reason of shared power to vote and to dispose
of the shares beneficially owned by HFTP. Promethean disclaims beneficial
ownership of the shares beneficially owned by HFTP. Mr. James F. O'Brien,
Jr. indirectly controls Promethean. Mr. O'Brien disclaims beneficial
ownership of the shares beneficially owned by Promethean and HFTP.
(3) Marshall Capital Management, Inc. is an indirect, wholly owned subsidiary of
Credit Suisse First Boston Group, a Swiss financial services company whose
shares are publicly traded. The parent companies of Marshall Capital
Management, Inc. disclaim beneficial ownership of any securities owned by
Marshall Capital Management, Inc.
11
<PAGE>
PLAN OF DISTRIBUTION
We are registering the shares of common stock and the common stock issuable
upon exercise of the related warrants to permit the resale of the shares of
common stock by the holders of the common stock and the related warrants from
time to time after the date of this prospectus. We will not receive any of the
proceeds from the sale by the selling securityholders of the shares of common
stock, although we may receive up to approximately $700,000 upon exercise of the
warrants. We will bear all fees and expenses incident to our obligation to
register the shares of common stock.
The selling securityholders may sell all or a portion of the common stock
beneficially owned by them and offered hereby from time to time directly or
through one or more underwriters, broker-dealers or agents. If the common stock
is sold through underwriters or broker-dealers, the selling securityholder 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, at
prevailing market prices at the time of the sale, at varying prices determined
at the time of sale, or at negotiated prices. These sales may be effected in
transactions, which may involve crosses or block transactions,
(1) on any national securities exchange or quotation service on which the
securities may be listed or quoted at the time of sale,
(2) in the over-the-counter market,
(3) in transactions otherwise than on these exchanges or systems or in the
over-the-counter market,
(4) through the writing of options, whether such options are listed on an
options exchange or otherwise, or
(5) through the settlement of short sales.
If the selling securityholders effect such transactions by selling shares of
common stock to or through underwriters, broker-dealers or agents, such
underwriters, broker-dealers or agents may receive commissions in the form of
discounts, concessions or commissions from the selling securityholders or
commissions from purchasers of the shares of common stock for whom they may act
as agent or to whom they may sell as principal (which discounts, concessions or
commissions as to particular underwriters, broker-dealers or agents may be in
excess of those customary in the types of transactions involved). In connection
with sales of the common stock or otherwise, the selling securityholders may
enter into hedging transactions with broker-dealers, which may in turn engage in
short sales of the common stock in the course of hedging in positions they
assume. The selling securityholders may also sell shares of common stock short
and deliver shares of common stock covered by this prospectus to close out short
positions, provided that the short sale is made after the registration statement
is declared effective and a copy of this prospectus is delivered in connection
with the short sale. The selling securityholder may also loan or pledge shares
of common stock to broker-dealers that in turn may sell such shares.
The selling securityholders may pledge or grant a security interest in some
or all of the shares of common stock owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell the shares of common stock from time to time pursuant to the
prospectus. The selling securityholders also may transfer and donate the shares
of common stock in other circumstances in which case the transferees, donees,
pledgees or other successors in interest will be the selling beneficial owners
for purposes of the prospectus.
The selling securityholders and any broker-dealer participating in the
distribution of the shares of common stock may be deemed to be "underwriters"
within the meaning of the Securities Act, and any commissions paid, or any
discounts or concessions allowed to any such broker-dealer may be deemed to be
underwriting commissions or discounts under the Securities Act. At the time a
particular offering of
12
<PAGE>
the shares of common stock is made, a prospectus supplement, if required, will
be distributed which will set forth the aggregate amount of shares of common
stock being offered and the terms of the offering, including the name or names
of any broker-dealers or agents, any discounts, commissions and other terms
constituting compensation from the selling securityholder and any discounts,
commissions or concessions allowed or reallowed or paid to broker-dealers.
Under the securities laws of some states, the shares of common stock may be
sold in such states only through registered or licensed brokers or dealers. In
addition, in some states the shares of common stock may not be sold unless such
shares have been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied with.
There can be no assurance that any selling securityholder will sell any or
all of the shares of common stock registered pursuant to the shelf registration
statement, of which this prospectus forms a part.
The selling securityholders and any other person participating in such
distribution will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder, including, without limitation,
Regulation M of the Exchange Act, which may limit the timing of purchases and
sales of any of the shares of common stock by the selling securityholders and
any other participating person. Regulation M may also restrict the ability of
any person engaged in the distribution of the shares of common stock to engage
in market-making activities with respect to the shares of common stock. All of
the foregoing may affect the marketability of the shares of common stock and the
ability of any person or entity to engage in market-making activities with
respect to the shares of common stock.
We will pay all expenses of the registration of the shares of common stock
pursuant to the registration rights agreement estimated to be $19,000.00 in
total, including, without limitation, Commission filing fees and expenses of
compliance with state securities or "blue sky" laws; provided, however, that the
selling securityholders will pay all underwriting discounts and selling
commissions, if any. In connection with sales made pursuant to this prospectus,
we will indemnify the selling securityholders against liabilities, including
some liabilities under the Securities Act, in accordance with the registration
rights agreement or the selling securityholders will be entitled to
contribution. We will be indemnified by the selling securityholders against
civil liabilities, including liabilities under the Securities Act that may arise
from any written information furnished to us by the selling securityholders for
use in this prospectus, in accordance with the related registration rights
agreement or we will be entitled to contribution.
Once sold under the shelf registration statement, of which this prospectus
forms a part, the shares of common stock will be freely tradable in the hands of
persons other than our affiliates.
13
<PAGE>
LEGAL MATTERS
The validity of the issuance of the shares of common stock being offered
hereby will be passed upon for us by Wilson Sonsini Goodrich & Rosati,
Professional Corporation.
EXPERTS
The financial statements of Intraware, Inc. as of February 29, 2000,
February 28, 1999 and for each of the three years in the 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., as
amended on the Form 10-K/A filed on November 9, 2000, have been so incorporated
in reliance upon the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
WHERE YOU CAN FIND MORE INFORMATION
Intraware is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). In accordance with the
Exchange Act, Intraware files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information filed by Intraware may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Room 1024, Washington, D.C. 20549 and at the Commission's
following Regional Offices': New York Regional Office, 7 World Trade Center, New
York, New York, 10048; and Chicago Regional Office, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material also may be obtained at prescribed rates from the Public Reference
Branch of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549-1004.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms. Intraware's common stock is listed on The Nasdaq Stock Market's
National Market System and such reports, proxy statements and other information
concerning Intraware may be inspected at the offices of The Nasdaq Stock Market,
1735 K Street, N.W., Washington, D.C. 20006-1506. The Commission maintains a web
site at http://www.sec.gov that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus, and information we later file with the SEC will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings we will make with the SEC
under Sections 13(a), 13(c), 14 and 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, as amended on Form 10-K/A
(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 Quarterly Report on Form 10-Q for the fiscal quarter ended
November 30, 2000 as filed with the Commission on January 16, 2001;
- 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;
14
<PAGE>
- Our Current Report on Form 8-K as filed with the Commission on
December 12, 2000;
- 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; and
- Our Current Report on Form 8-K as filed with the Commission on
January 16, 2001.
You may also request a copy of these filings, at no cost by writing or
telephoning us at the following address:
Intraware, Inc.
General Counsel
25 Orinda Way
Orinda, CA 94563
(925) 253-4500
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by Intraware
in connection with the sale of common stock being registered. All amounts are
estimates except the SEC registration fee.
<TABLE>
<CAPTION>
AMOUNT TO
BE PAID
----------
<S> <C>
SEC registration fee........................................ $ 884.00
Legal fees and expenses..................................... 10,000.00
Accounting fees and expenses................................ 6,000.00
Miscellaneous fees and expenses............................. 2,116.00
Total..................................................... $19,000.00
</TABLE>
ITEM 15. 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, 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 AND FINANCIAL STATEMENT SCHEDULES
a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT NUMBER
---------------------
<C> <S>
4.1* Form of Warrant
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation regarding legality of the securities being
registered.
10.1** Form of Redemption and Amendment Agreement dated as of
January 10, 2001 among Intraware, Inc. and the selling
securityholders.
10.2** Form of Registration Rights Agreement dated as of
January 10, 2001 among Intraware, Inc. and the selling
securityholders.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Attorneys (see Exhibit 5.1).
</TABLE>
------------------------
* Incorporated by reference to exhibit filed with Registrant's Form 8-K as
filed with the Securities and Exchange Commission on July 3, 2000
(File No. 000-25249).
** Incorporated by reference to exhibits filed with Registrant's Form 8-K as
filed with the Securities and Exchange Commission on January 16, 2001.
II-1
<PAGE>
ITEM 17. UNDERTAKINGS
(a) We undertake:
(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.
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 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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;
(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.
(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
Company'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 this
registration statement shall be deemed to be a new registration statement
relating to the securities offered thereby, and the offering of such securities
at the 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. If a claim for indemnification against
such liabilities (other than 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 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
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 Orinda, State of California on January 17, 2001.
<TABLE>
<S> <C> <C>
INTRAWARE, INC.
By: /s/ PETER H. JACKSON
-----------------------------------------
Peter H. Jackson
CHIEF EXECUTIVE OFFICER
</TABLE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Peter H. Jackson, Donald M. Freed and
John J. Moss, 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>
/s/ PETER H. JACKSON
------------------------------------ Chief Executive Officer and Director January 17, 2001
Peter H. Jackson (Principal Executive Officer)
/s/ DONALD M. FREED
------------------------------------ Chief Financial Officer January 17, 2001
Donald M. Freed
/s/ LAURENCE M. BAER
------------------------------------ Director January 17, 2001
Laurence M. Baer
/s/ JOHN V. BALEN
------------------------------------ Director January 17, 2001
John V. Balen
------------------------------------ President and Director January 17, 2001
Frost R. R. Prioleau
/s/ MARK B. HOFFMAN
------------------------------------ Director January 17, 2001
Mark B. Hoffman
/s/ RONALD E. F. CODD
------------------------------------ Director January 17, 2001
Ronald E. F. Codd
</TABLE>
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER
---------------------
<C> <S>
4.1* Form of Warrant
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation regarding legality of the securities being
registered.
10.1** Form of Redemption and Amendment Agreement dated as of
January 10, 2001 among Intraware, Inc. and the selling
securityholders.
10.2** Form of Registration Rights Agreement dated as of
January 10, 2001 among Intraware, Inc. and the selling
securityholders.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Attorneys (see Exhibit 5.1).
</TABLE>
------------------------
* Incorporated by reference to exhibit filed with Registrant's Form 8-K as
filed with the Securities and Exchange Commission on July 3, 2000 (File
No. 000-25249).
** Incorporated by reference to exhibits filed with Registrant's Form 8-K as
filed with the Securities and Exchange Commission on January 16, 2001.
