As filed with the Securities and Exchange Commission on October 13, 2000
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
KEYNOTE SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 94-3226488
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
Keynote Systems, Inc.
2855 Campus Drive
San Mateo, California 94403
(Address of Principal Executive Offices, including Zip Code)
Options to purchase common stock initially granted under the
Velogic, Inc. 1998 Stock Option/Stock Issuance Plan
and assumed by the registrant under the terms of an
Agreement and Plan of Reorganization dated as of May 9, 2000
(Full title of the plan)
John Flavio
Vice President of Finance and Chief Financial Officer
Keynote Systems, Inc.
2855 Campus Drive
San Mateo, California 94403
(650) 522-1000
(Name, Address and Telephone Number of Agent for Service)
Copies to:
Jeffrey R. Vetter, Esq.
Scott J. Leichtner, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
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Amount Proposed Maximum Proposed Maximum
to be Offering Price Aggregate Amount of
Title of Securities to be Registered Registered Per Share Offering Price Registration Fee
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Common Stock, $.001 par value per share............ 23,659 (1) $2.62 (2) $61,987 (3) $17
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(1) Represents shares subject to outstanding options granted under the Velogic,
Inc. 1998 Stock Option/Stock Issuance Plan and assumed by the registrant.
(2) Weighted average exercise price per share for the assumed outstanding
options.
(3) Calculated based on the weighted average exercise price per share for such
options, pursuant to Rule 457(h)(1) of the Securities Act of 1933.
KEYNOTE SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
are incorporated by reference in this registration statement:
(a) The registrant's annual report on Form 10-K for the fiscal year ended
September 30, 1999, filed with the Securities and Exchange Commission
on December 21, 1999.
(b) All other reports filed by the registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since the end of the
fiscal year covered by the annual report referred to in (a) above.
(c) The description of the registrant's common stock contained in the
registrant's registration statement on Form 8-A filed with the
Securities and Exchange Commission on September 3, 1999 under Section
12(g) of the Securities Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act, on or after the date of this
registration statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be a part of this registration
statement from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Fenwick & West LLP, Palo Alto, California, will pass upon the validity of
the shares of common stock offered by this registration statement. Partners of
Fenwick & West LLP beneficially own approximately 23,600 shares of the
registrant's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's board of directors to grant, 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.
As permitted by the Delaware General Corporation Law, the registrant's
Amended and Restated Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the registrant or its stockholders, (ii)
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) under section 174 of the Delaware General
Corporation Law (regarding unlawful dividends and stock purchases) or (iv) for
any transaction from which the director derived an improper personal benefit.
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As permitted by the Delaware General Corporation Law, the Bylaws of the
registrant provide that (i) the registrant is required to indemnify its
directors and officers to the fullest extent permitted by the Delaware General
Corporation Law, subject to certain very limited exceptions, (ii) the registrant
may indemnify its other employees and agents as set forth in the Delaware
General Corporation Law, (iii) the registrant is required to advance expenses,
as incurred, to its directors and executive officers in connection with a legal
proceeding to the fullest extent permitted by the Delaware General Corporation
Law, subject to certain very limited exceptions and (iv) the rights conferred in
the Bylaws are not exclusive.
The registrant has entered into Indemnification Agreements with each of its
directors and executive officers to give such directors and officers additional
contractual assurances regarding the scope of the indemnification set forth in
the registrant's Amended and Restated Certificate of Incorporation and to
provide additional procedural protections. At present, there is no pending
litigation or proceeding involving a director, officer or employee of the
registrant regarding which indemnification is sought, nor is the registrant
aware of any threatened litigation that may result in claims for
indemnification.
The indemnification provision in the registrant's Amended and Restated
Certificate of Incorporation, Bylaws and the Indemnification Agreements entered
into between the registrant and each of its directors and executive officers may
be sufficiently broad to permit indemnification of the registrant's directors
and executive officers for liabilities arising under the Securities Act.
The registrant, with approval by the registrant's Board of Directors, has
obtained directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Exhibit Title
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4.01 Registrant's Amended and Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.04 to the
registrant's registration statement on Form S-1 (Registration No.
333-94651), declared effective by the Securities and Exchange
Commission on February 17, 2000).
4.02 Registrant's Bylaws
(incorporated herein by reference to Annex B of the registrant's
definitive proxy statement on Schedule 14A, filed with the
Securities and Exchange Commission on January 19, 2000).
4.03 Form of specimen stock certificate for registrant's common stock
(incorporated herein by reference to Exhibit 4.01 of registrant's
registration statement on Form S-1 (Registration No. 333-82781),
declared effective by the Securities and Exchange Commission on
September 24, 1999 (the "Form S-1").
4.04 Third Amended and Restated Investors' Rights Agreement, dated as of
April 26, 1999
(incorporated herein by reference to Exhibit 4.02 of registrant's
registration statement on Form S-1).
4.05 Registrant's 1996 Stock Option Plan
(incorporated herein by reference to Exhibit 10.02 of the Form S-1).
4.06 Registrant's 1999 Stock Option Plan
(incorporated herein by reference to Exhibit 10.03 of the Form S-1).
4.07 Registrant's 1999 Equity Incentive Plan and related forms of stock
option agreement and stock option exercise agreement
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(incorporated herein by reference to Exhibit 10.04 of the Form S-1).
4.08 Registrant's 1999 Employee Stock Purchase Plan and related forms of
enrollment form, subscription agreement, notice of withdrawal and
notice of suspension
(incorporated herein by reference to Exhibit 10.05 of the Form S-1).
4.09 Velogic, Inc. 1998 Stock Option/Stock Issuance Plan and related
forms of stock option agreement and notice of grant of stock option.
5.01 Opinion of Fenwick & West LLP regarding legality of the securities
being registered.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of KPMG LLP, independent accountants.
24.01 Power of Attorney (see page 5).
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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 Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 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;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the
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information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
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fide offering thereof.
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(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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act; and,
where interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Mateo, State of California, on this 13th day of
October, 2000.
KEYNOTE SYSTEMS, INC.
By: /s/ Umang Gupta
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Umang Gupta
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Umang Gupta and John Flavio, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement on Form S-8, and to file the same with all
exhibits thereto and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated:
Signature Title Date
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Principal Executive Officer:
/s/ Umang Gupta Chairman of the Board and October 13, 2000
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Umang Gupta Chief Executive Officer
Principal Financial and Accounting Officer:
/s/ John Flavio Vice President of Finance, October 13, 2000
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John Flavio Chief Financial Officer and Secretary
Other Directors:
Director
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Eugene Shklar
/s/ David Cowan Director October 13, 2000
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David Cowan
Director
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Mark Leslie
/s/ Stratton Sclavos Director October 13, 2000
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Stratton Sclavos
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EXHIBIT INDEX
Exhibit
Number Exhibit Title
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4.09 Velogic, Inc. 1998 Stock Option/Stock Issuance Plan and related
forms of stock option agreement and notice of grant of stock option.
5.01 Opinion of Fenwick & West LLP regarding legality of the securities
being registered.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of KPMG LLP, independent accountants.
24.01 Power of Attorney (see page 5).
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