Exhibit
4.2


THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
THIS WARRANT HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE
TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”) SHALL HAVE BECOME EFFECTIVE WITH
RESPECT THERETO OR (ii) RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER
THE SECURITIES ACT IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER
NOR IS SUCH TRANSFER IN VIOLATION OF ANY APPLICABLE STATE SECURITIES LAWS.  THIS LEGEND SHALL BE ENDORSED UPON ANY
WARRANT ISSUED IN EXCHANGE FOR THIS WARRANT OR ANY SHARES OF COMMON STOCK
ISSUABLE UPON EXERCISE OF THIS WARRANT.


WARRANT TO PURCHASE
COMMON STOCK


OF


INTRAWARE, INC.


No. AW02-1


This
is to Certify That, FOR VALUE RECEIVED, ___________________, or assigns (the
“Holder”), is entitled to purchase, subject to the provisions of this warrant
______________ fully paid, validly issued and nonassessable shares of common
stock of the Company (the “Common Stock”) at a per share price equal to the
Exercise Price, subject to adjustment as set forth herein. The number of shares
of Common Stock to be received upon the exercise of this Warrant and the price
to be paid for each share may be adjusted from time to time as hereinafter set
forth. This Warrant, together with warrants of like tenor, constituting in the
aggregate warrants (the “Warrants”) to purchase up to 310,200 shares of
Common Stock, is being issued pursuant to a placement agency agreement between
the Company and Commonwealth Associates, L. P. in connection with a private
placement of the Company’s securities (the “Private Placement”).


(a)           DEFINITIONS.  As used herein, the following terms shall
have the following meanings, unless the context shall otherwise require:


(1)           “Common
Stock” shall mean stock of the Company of any class, whether now or hereafter
authorized, which has the right to participate in the distributions of earnings
and assets of the Company without limit as to amount or percentage, which at
the date hereof consists of 250,000,000 authorized shares of Common Stock.


(2)           “Exercise
Date” shall mean, as to any Warrant, the date on which the Warrant Agent shall
have received both (a) the certificate representing such Warrant (the “Warrant
Certificate”), with the exercise form thereon duly executed by the Registered
Holder thereof or his attorney duly authorized in writing, and (b) if payment
is to be made in cash, cash or an official bank or certified check made payable
to the Company, of an amount in lawful money of the United States of America
equal to the Exercise Price.


(3)           “Exercise
Price” shall mean the purchase price to be paid upon exercise of each Warrant
in accordance with the terms hereof, which price shall be $1.00, subject to
adjustment from time to time pursuant to the provisions of Section (f) hereof
and subject further to the Company’s right to reduce the Exercise Price upon
notice to all Registered Holders.


 

















 


(4)           “Initial
Warrant Exercise Date” shall mean shall mean May 24, 2002.


(5)           “Registered
Holder” shall mean the person in whose name any Warrants shall be registered on
the books maintained by the Company pursuant to Section (d).


(6)           “Warrant
Expiration Date” shall mean 5:00 P.M. 
(New York time) on May 24, 2007; provided that if such date shall in the
State of New York be a holiday or a day on which banks are authorized to close,
then 5:00 P.M.  (New York time) on the
next following day which in the State of New York is not a holiday or a day on
which banks are authorized to close. 
Upon notice to all Registered Holders the Company shall have the right
to extend the Warrant Expiration Date.


(7)           “Warrant
Shares” shall mean the shares of Common Stock deliverable upon exercise of the
Warrants, as adjusted from time to time.


(b)           EXERCISE OF
WARRANTS


(1)           Each
Warrant may be exercised by the Registered Holder thereof at any time on or
after the Initial Warrant Exercise Date, but not after the Warrant Expiration
Date, upon the terms and subject to the conditions set forth herein.  A Warrant shall be deemed to have been
exercised immediately prior to the close of business on the Exercise Date and
the person entitled to receive the securities deliverable upon such exercise
shall be treated for all purposes as the holder upon exercise thereof as of the
close of business on the Exercise Date. 
As soon as practicable on or after the Exercise Date the Company shall
deposit the proceeds received from the exercise of a Warrant, and promptly
after clearance of checks received in payment of the Exercise Price pursuant to
such Warrants, issue and deliver to the person or persons entitled to receive
the same a certificate or certificates for the securities deliverable upon such
exercise (plus a certificate for any remaining unexercised Warrants of the
Registered Holder).


(2)           The
Registered Holder may, at its option, exchange this Warrant on a cashless
basis, in whole or in part (a “Warrant Exchange”), into the number of
Warrant Shares determined in accordance with this Section (b)(2), by
surrendering the Warrant Certificate at the principal office of the Company or
at the office of its stock transfer agent, accompanied by an irrevocable notice
stating such Registered Holder’s intent to effect such exchange, the number of
Warrant Shares to be exchanged and the date of the notice of such intent to
exchange (the “Notice of Exchange”). 
The Registered Holder may send a Notice of Exchange to the Company prior
to the Initial Warrant Exercise Date. The Warrant Exchange shall take place on
the date the Notice of Exchange is received by the Company (the “Exchange
Date”).  Certificates for the shares
issuable upon such Warrant Exchange and, if applicable, a new warrant of like
tenor evidencing the balance of the shares remaining subject to such Warrant,
shall be issued as of the Exchange Date and delivered to the Registered Holder
as soon as is reasonably practicable following the Exchange Date.  In connection with any Warrant Exchange, a Warrant
shall represent the right to subscribe for and acquire the number of Warrant
Shares (rounded to the next highest integer) equal to (i) the number of Warrant
Shares specified by the Registered Holder in its Notice of Exchange (the “Total
Number”) less (ii) the number of Warrant Shares equal to the quotient obtained
by dividing (x) the product of the Total Number and the existing Exercise Price
by (y) the current market value of a share of Common Stock as set forth below:


 


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(A)          If the Common Stock is listed on a
national securities exchange or admitted to unlisted trading privileges on such
exchange or listed for trading on the Nasdaq Stock Market (“Nasdaq”),
the current market value shall be the highest closing price of the Common Stock
on such exchange or market for the five trading days preceding the date of the
Notice of Exchange;


(B)           If the Common Stock is not so listed
or admitted to unlisted trading privileges, the current market value shall be
the average of the last reported bid and asked prices reported by the National
Quotation Bureau, Inc. for the five business days preceding the date of the
Notice of Exchange; or


(C)           If the Common Stock is not so listed
or admitted to unlisted trading privileges and bid and asked prices are not so
reported, the current market value shall be an amount determined in such
reasonable manner as may be prescribed by the Board of Directors of the
Company.


(c)           RESERVATION
OF SHARES; LISTING; PAYMENT OF TAXES; ETC.


(1)           The
Company covenants that it will at all times reserve and keep available out of
its authorized Common Shares, solely for the purpose of issue upon exercise of
Warrants, such number of Common Shares as shall then be issuable upon the
exercise of all outstanding Warrants. 
The Company covenants that all Common Shares which shall be issuable
upon exercise of the Warrants and payment of the Exercise Price shall, at the
time of delivery, be duly and validly issued, fully paid, nonassessable and
free from all taxes, liens and charges with respect to the issue thereof (other
than those which the Company shall promptly pay or discharge).


(2)           The
Company will use reasonable efforts to obtain appropriate approvals or
registrations under state “blue sky” securities laws with respect to the
exercise of the Warrants; provided, however, that the Company shall not be
obligated to file any general consent to service of process or qualify as a
foreign corporation in any jurisdiction. 
With respect to any such securities laws, however, Warrants may not be
exercised by, nor Common Shares issued to, any Registered Holder in any state
or province in which such exercise would be unlawful.


(3)           The
Company shall pay all documentary, stamp or similar taxes and other
governmental charges that may be imposed with respect to the issuance of
Warrants, or the issuance, or delivery of any shares upon exercise of the
Warrants; provided, however, that if the Common Shares are to be delivered in a
name other than the name of the Registered Holder of the Warrant Certificate
representing any Warrant being exercised, then no such delivery shall be made
unless the person requesting the same has paid to the Company the amount of
transfer taxes or charges incident thereto, if any.


(d)           EXCHANGE, TRANSFER
OR ASSIGNMENT.  This Warrant
is exchangeable, without expense, at the option of the Holder, upon
presentation and surrender hereof to the Company for other warrants of
different denominations entitling the holder thereof to purchase in the aggregate
the same number of Common Shares purchasable hereunder.   Upon surrender of this Warrant to the
Company at its principal office with the Assignment Form annexed hereto duly
executed and funds sufficient to pay any transfer tax, the Company shall,
without charge, execute and deliver a new Warrant in the name of the assignee
named in such 


 


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instrument of assignment and this Warrant shall
promptly be canceled.  This Warrant may
be divided or combined with other warrants which carry the same rights upon
presentation hereof at the principal office of the Company, together with a
written notice specifying the names and denominations in which new Warrants are
to be issued and signed by the Holder hereof. 
The term “Warrant” as used herein includes any Warrants into which this
Warrant may be divided or exchanged.


(e)           LOSS OR
MUTILATION.  Upon receipt by
the Company of evidence satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant, and (in the case of loss, theft or destruction) of
reasonably satisfactory indemnification, and upon surrender and cancellation of
this Warrant, if mutilated, the Company will execute and deliver a new Warrant
of like tenor and date.  Any such new
Warrant executed and delivered shall constitute an additional contractual
obligation on the part of the Company, whether or not this Warrant so lost,
stolen, destroyed, or mutilated shall be at any time enforceable by anyone.


(f)            ANTI-DILUTION
PROVISIONS.  The Exercise
Price in effect at any time and the number and kind of securities purchasable
upon the exercise of the Warrants shall be subject to adjustment from time to
time in accordance with the terms set forth below.


(1)           Adjustment
for Dividends in Other Stock and Property; Reclassifications. In case at
any time or from time to time the holders of the Common Stock (or any shares of
stock or other securities at the time receivable upon the exercise of this
Warrant) shall have received, or, on or after the record date fixed for the
determination of eligible shareholders, shall have become entitled to receive,
without payment therefor,


(A)          other or additional stock or other
securities or property (other than cash) by way of dividend,


(B)           any cash or other property paid or
payable out of any source other than retained earnings (determined in
accordance with generally accepted accounting principles), or


(C)           other or additional stock or other
securities or property (including cash) by way of stock-split, spin-off,
reclassification, combination of shares or similar corporate rearrangement,
(other than (x) additional shares of Common Stock or any other stock or
securities into which such Common Stock shall have been changed, (y) any other
stock or securities convertible into or exchangeable for such Common Stock or
such other stock or securities or (z) any Stock Purchase Rights, issued as a
stock dividend or stock-split), then and in each such case Holder, upon the
exercise hereof as provided in Section (b), shall be entitled to receive the
amount of stock and other securities and property (including cash in the cases
referred to in clauses (B) and (C) above) which such Holder would hold on the
date of such exercise if on the Initial Warrant Exercise Date Holder had been
the holder of record of the number of shares of Common Stock called for on the
face of this Warrant, as adjusted in accordance with the first paragraph of
this Warrant, and had thereafter, during the period from the Initial Warrant
Exercise Date to and including the date of such exercise, retained such shares
and/or all other or additional stock and other securities and property
(including cash in the cases referred to in clauses (B) and (C) above)
receivable by it as aforesaid during 


 


4

















 


such period, giving
effect to all adjustments called for during such period by Sections (f)(1),
(f)(2) and (f)(3).


(2)           Adjustment
for Reorganization, Consolidation and Merger.  In case of any reorganization of the Company (or any other
corporation the stock or other securities of which are at the time receivable
on the exercise of this Warrant) after the Initial Warrant Exercise Date, or in
case, after such date, the Company (or any such other corporation) shall
consolidate with or merge into another corporation or entity or convey all or
substantially all its assets to another corporation or entity, then and in each
such case Holder, upon the exercise hereof as provided in Section (b) at any
time after the consummation of such reorganization, consolidation, merger or
conveyance, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise of this Warrant prior to
such consummation, the stock or other securities or property to which such
Holder would have been entitled upon such consummation if Holder had exercised
this Warrant immediately prior thereto, all subject to further adjustment as
provided in Sections (f)(1), (f)(2) and (f)(3); in each such case, the terms of
this Warrant shall be applicable to the shares of stock or other securities or
property receivable upon the exercise of this Warrant after such consummation.


(3)           Adjustment
for Certain Dividends and Distributions. 
If the Company at any time or from time to time makes, or fixes a record
date for the determination of holders of Common Stock entitled to receive, a
dividend or other distribution payable in additional shares of Common Stock,
then and in each such event the number of shares of Common Stock receivable
upon the full exercise of this Warrant (the “Aggregate Number”) then in
effect shall be increased as of the time of such issuance or, in the event such
record date is fixed, as of the close of business on such record date, by
multiplying the Aggregate Number then in effect by a fraction (A) the
denominator of which is the total number of shares of Common Stock issued and
outstanding immediately prior to the time of such issuance or the close of
business on such record date, and (B) the numerator of which shall be the total
number of shares of Common Stock issued and outstanding immediately prior to
the time of such issuance or the close of business on such record date as the
case may be, plus the number of shares of Common Stock issuable in payment of
such dividend or distribution; provided, however, that if such record date is
fixed and such dividend is not fully paid or if such distribution is not fully
made on the date fixed therefor, the Aggregate Number shall be recomputed
accordingly as of the close of business on such record date, and thereafter the
Aggregate Number shall be adjusted pursuant to this Section (f)(3) as of the
time of actual payment of such dividends or distributions.


(4)           Stock
Split and Reverse Stock Split.  If
the Company at any time or from time to time effects a stock split or
subdivision of the outstanding Common Stock, the Aggregate Number then in
effect immediately before that stock split or subdivision shall be
proportionately increased.  If the Company
at any time or from time to time effects a reverse stock split or combines the
outstanding shares of Common Stock into a smaller number of shares, the
Aggregate Number then in effect immediately before that reverse stock split or
combination shall be proportionately decreased.  Each adjustment under this Section (f)(4) shall become effective
at the close of business on the date the stock split, subdivision, reverse
stock split or combination becomes effective.


(5)           No
Impairment.  The Company will not,
by amendment of its Certificate of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, 


 


5

















 


dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms to be observed or performed hereunder by the Company but will at
all times in good faith assist in the carrying out of all the provisions of
this Section (f) and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Holders of the Warrants
against impairment.


(6)           Certificate
as to Adjustments.  Upon the
occurrence of each adjustment or readjustment of the Conversion Price pursuant
to this Section (f), the Company at its expense shall promptly compute such
adjustment or readjustment in accordance with the terms hereof and furnish to
each holder of a Warrant a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or
readjustment is based. The Company shall, upon the written request at any time
of any holder of a Warrant, furnish or cause to be furnished to such holder a
like certificate setting forth (i) such adjustments and readjustments, (ii)
Aggregate Number at the time in effect, and (iii) the number of shares of
Common Stock and the amount, if any, of other property which at the time would
be received upon the exercise of the Warrant.


(7)           Notices
of Record Date.   In case


(A)          the Company shall take a record of the
holders of its Common Stock (or other stock or securities at the time
receivable upon the exercise of the Warrants) for the purpose of entitling them
to receive any dividend or other distribution, or any right to subscribe for or
purchase any shares of stock of any class or any other securities, or to
receive any other right, or


(B)           of any capital reorganization of the
Company, any reclassification of the capital stock of the Company, any
consolidation or merger of the Company with or into another corporation, or any
conveyance of all or substantially all of the assets of the Company to another
corporation, or


(C)           of any voluntary dissolution,
liquidation or winding-up of the Company,


 


then, and in each such case, the Company will mail or cause to be
mailed to each holder of a Warrant at the time outstanding a notice specifying,
as the case may be, (a) the date on which a record is to be taken for the
purpose of such dividend, distribution or right, and stating the amount and
character of such dividend, distribution or right, or (b) the date on which
such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up is expected to take place, and the time,
if any is to be fixed, as of which the holders of record of Common Stock (or
such stock or securities at the time receivable upon the exercise of the
Warrants) shall be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation or winding-up, such notice shall be mailed at least 30
days prior to the date therein specified.


(8)           Stock
Purchase Rights.  If at any time or
from time to time, the Company grants or issues to all the record holders of
the Common Stock any options, warrants or subscription rights (collectively,
the “Stock Purchase Rights”) entitling a holder to purchase Common Stock
or any security convertible into or exchangeable for Common Stock or to 


 


6

















 


purchase any other stock or securities of the Company,
the Holder shall be entitled to acquire, upon the terms applicable to such
Stock Purchase Rights, the aggregate Stock Purchase Rights which Holder could
have acquired if Holder had been the record holder of  the maximum number of shares of Common Stock issuable upon
exercise of this Warrant on  both  (x) the record date for such grant or
issuance of such Stock Purchase Rights, and 
(y) the date of the grant or issuance of such Stock Purchase Rights.


(g)           FRACTIONAL
WARRANTS AND FRACTIONAL SHARES.  If
the number of Common Shares purchasable upon the exercise of each Warrant is
adjusted pursuant to Section (f) hereof, the Company shall nevertheless not be
required to issue fractions of shares, upon exercise of the Warrants or
otherwise, or to distribute certificates that evidence fractional shares.  With respect to any fraction of a share
called for upon any exercise hereof, such fraction shall be rounded down to the
nearest whole share.


(h)           WARRANT
HOLDERS NOT DEEMED STOCKHOLDERS. 
No holder of Warrants shall, as such, be entitled to vote or to receive
dividends or be deemed the holder of Common Shares that may at any time be
issuable upon exercise of such Warrants for any purpose whatsoever, nor shall
anything contained herein be construed to confer upon the holder of Warrants,
as such, any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to stockholders at
any meeting thereof, or to give or withhold consent to any corporate action
(whether upon any recapitalization, issue or reclassification of stock, change
of par value or change of stock to no par value, consolidation, merger,
arrangement or conveyance or otherwise), or to receive notice of meetings, or
to receive dividends or subscription rights, until such Holder shall have
exercised such Warrants and been issued Common Shares in accordance with the
provisions hereof.


(i)            AGREEMENT OF
WARRANT HOLDERS.  Every
holder of a Warrant, by his acceptance thereof, consents and agrees with the
Company and every other holder of a Warrant that:


(1)           The
Warrants are transferable only on the registry books of the Company by the Registered
Holder thereof in person or by his attorney duly authorized in writing and only
if the Warrant Certificates representing such Warrants are surrendered at the
office of the Company, duly endorsed or accompanied by a proper instrument of
transfer satisfactory to the Company in its sole discretion, together with
payment of any applicable transfer taxes; and


(2)           The
Company may deem and treat the person in whose name the Warrant Certificate is
registered as the holder and as the absolute, true and lawful owner of the
Warrants represented thereby for all purposes, and the Company shall not be
affected by any notice or knowledge to the contrary, except as otherwise
expressly provided for herein.


(j)            MODIFICATION
OF AGREEMENT.  The provisions
of this Warrant may from time to time be amended, modified or waived, if such
amendment, modification or waiver is applicable to all of the Warrants and is
in writing and consented to by the Company and the holders of at least a
majority of the outstanding Warrants and such amendment, modification or waiver
shall be binding upon the holder of this Warrant (and any assignee thereof)
regardless of whether the holder consented to such amendment, modification or
waiver; provided that nothing shall prevent the Company and a Registered Holder
from consenting to modifications to this Agreement which affect or are
applicable to such Registered Holder only.


 


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(k)           NOTICES.  All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
made when delivered or mailed first class registered or certified mail, postage
prepaid as follows:  if to the
Registered Holder of a Warrant Certificate, at the address of such holder as
shown on the registry books maintained by the Company; if to the Company, if to
the Company, at 25 Orinda Way, Orinda, California 94563, Attention: John Moss;
and if to the Holder, c/o Commonwealth Associates, L.P. at 830 Third Avenue,
New York, New York 10022, Attention: Carl Kleidman.


(l)            GOVERNING
LAW.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.


(m)          BINDING
EFFECT.  This Agreement shall
be binding upon and inure to the benefit of the Company  (and its respective successors and assigns)
and the holders from time to time of the Warrants.  Nothing in this Agreement is intended or shall be construed to
confer upon any other person any right, remedy or claim, in equity or at law,
or to impose upon any other person any duty, liability or obligation.


(n)           TERMINATION.  This Agreement shall terminate on the
earlier to occur of (i)  the close of
business on the second day following the Warrant Expiration Date; or (ii) the
date upon which all Warrants represented hereby have been exercised.


(o)           COUNTERPARTS.  This Agreement may be executed in several
counterparts, which taken together shall constitute a single document.


(p)           REGISTRATION
RIGHTS. The holders of the Warrants and the Warrant Shares or their
transferees shall have the registration rights set forth in the Registration
Rights Agreement dated May 24, 2002 among the Company, Commonwealth Associates,
L.P. and each of the investors in the Private Placement, which agreement is
incorporated herein by reference in its entirety.


 


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IN
WITNESS WHEREOF, the parties hereto have caused this Warrant Agreement to be
duly executed as of the 24th day of May, 2002.


 


	
   

  	
  INTRAWARE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


 


 


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EXERCISE FORM


Dated
____________________


(1)  The
undersigned hereby irrevocably elects to exercise the within Warrant to the
extent of purchasing             shares of Common Stock of Intraware, Inc. (or
such number of shares or other securities or property to which the undersigned
is entitled in lieu thereof or in addition thereto under the provisions of the
Warrant).


(2)  The
undersigned elects to exercise the within Warrant on a cashless basis pursuant
to the provisions of Section (b)(2) of the Warrant by checking below:


______
check if cashless exercise; or


(3)  The
undersigned encloses herewith a bank draft, certified check or money order
payable to the Company in payment of the exercise price determined under, and
on the terms specified in, the Warrant.


(4)  The
undersigned hereby irrevocably directs that the said shares be issued and
delivered as follows:


 


	
  Name(s) in
  Full

  	
   

  	
  Address(es)

  	
   

  	
  Number of
  Shares

  	
   

  	
  S.S. or
  IRS #

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


	
   

  	
   

  	
   

  
	
  Signature of Subscriber

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Print Name

  	
   

  	
   

  



 


 


 


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ASSIGNMENT FORM


FOR VALUE RECEIVED,                                     hereby sells, assigns and transfers unto


Name                                                                      


(Please typewrite or print in block letters)


Address                                                                                 


the right to purchase shares of Common Stock represented by this
Warrant to the extent of         shares as to which such right is exercisable
and does hereby irrevocably constitute and appoint ______________ Attorney, to
transfer the same on the books of the Company with full power of substitution
in the premises.


Date                                                                        


Signature                                                               


 


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