**Exhibit 10.38**

 

April 20, 2005

 

David L. Dunlap

Intraware, Inc.

25 Orinda Way

Orinda, CA 94563

 

Dear Dave:

 

We are pleased that you are willing to acceptthe position of Sales Advisor at Intraware, Inc.  Your cooperation in this role will beimportant to a successful transition to Intraware’s new sales management, andwe are grateful for your willingness to assist in this fashion.

 

This letter agreement (“Agreement”) sets forththe terms for your employment by Intraware between the date of this letter and September 16,2005 (the “Employment Termination Date”).

 

1.                    Position:  Your title will be Sales Advisor.  You will report to Richard Northing,Executive Vice President and Chief Operating Officer (the “COO”).

 

2.                    Responsibilities:  Your responsibilities will be:

 

•                  Assist in educating, advising, andpreparing the COO for new duties.

 

•                  Inventory and communicate to COO, thebackground and status on current business development, customers, vendors, andpartners as needed, including any action in process. Smooth the process oftransitioning customer, vendor, and partner relationships to include makingintroductions, and initiating and attending meetings as appropriate.

 

•                  Review with and advise COO onemployee status within the Sales department including any planned changes.Advise as to other possible modifications to the Sales organization.  Assist in creating sales compensation plans.Act as a resource in new hire processes as needed.

 

•                  You will be available during businesshours for telephone calls, conference calls, e-mail, and in-office and off-sitemeetings as needed and as scheduled in a mutually-agreeable fashion.  You will not be required to report to theoffice except as needed in accordance with the foregoing.

 

3.                    Compensation:  You will continue to receive your currentbase salary and employee benefits (including all benefits offered to Intraware’semployees generally) through the Employment Termination Date.  Your stock options will continue to vestthrough the Employment Termination Date, in accordance with Intraware’s 1996Stock Option Plan.  You will receivesales commissions, under your current sales commission plan, for the month of March 2005.  You will not receive sales commissions forany period after March 2005, except as follows.  If Intraware signs any agreement on or beforethe Employment Termination Date with an enterprise software publisher, underwhich Intraware is to provide services to that publisher related to resale of itsproducts and/or related maintenance, and such agreement provides for thepublisher’s payment of minimum service fees to Intraware, you will receive acommission in an amount equal to a portion of the minimum service fees requiredto be paid by the publisher to Intraware during the initial term of suchagreement. 

 

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The amount of such commission will bedetermined by Intraware and you, both acting reasonably, based on, among otherfactors, the structure of the contract, its payment terms, and the degree towhich you were involved in generating and closing it. The timing of Intraware’spayment of any such commission to you will be based on the timing ofIntraware’s receipt of the initial term minimum service fees or portion thereofunder the agreement. This paragraph states your entire compensation from thedate of this Agreement.

 

4.                    ExpenseReimbursement.  You will continue tobe reimbursed for all reasonable job-related expenses in accordance withIntraware’s Corporate Expense and Travel Policy.  If you have any doubt about whether anexpense you incur is reimbursable under that policy, you are encouraged toobtain written pre-approval of the expense from the COO.

 

5.                    Change ofControl Severance Agreement.  Youagree that the Change of Control Severance Agreement dated June 5, 2001,between you and Intraware is terminated as of the date of this letter.

 

6.                    Termination.  This Agreement may not be terminated exceptfor a material breach of this Agreement which is not remedied within 5 businessdays after written notice by the non-breaching party to the breaching party; provided,however, Intraware may terminate this Agreement upon written notice if youmaterially violate Intraware’s Employee Handbook or the Intraware policies madegenerally available to Intraware employees and posted on the company intranet.

 

7.                    Entire Agreement.  This Agreement contains the entire agreementbetween you and Intraware concerning your employment at Intraware, andsupersedes and replaces all prior and contemporaneous agreements,understandings and communications related thereto.  This Agreement may not be modified, changedor supplemented in any way except by a written amendment signed by you and anexecutive officer of Intraware. This Agreement shall be binding on, and inureto the benefit of, each party’s successors and assigns, including withoutlimitation any person or company that acquires control of Intraware.

 

Please sign below to indicate your agreementto the above.  Again, we thank you foryour cooperation during this transition period.

 
| Very truly yours,                                     |
|-------------------------------------------------------|
|                                                  |
| /s/ RICHARD J. NORTHING                               |   |
| Richard J. Northing                                   |
| Executive Vice President and Chief  Operating Officer |
|                                                  |
| cc:                                                   | Melinda Ericks, Director of Human Resources |
|                                                       |  |  |

 
|   | Agreed and accepted: |
|--------|----------------------|
|   |                 |
|   | /s/ DAVID L. DUNLAP  |   |
|   | David L. Dunlap      |

 

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