As filed with the Securities and Exchange Commission on September 24, 1999
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)
CALIFORNIA 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)
1996 STOCK OPTION PLAN
1999 STOCK OPTION PLAN
1999 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Titles of the Plans)
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:
Matthew P. Quilter, Esq.
Jeffrey R. Vetter, Esq.
Scott J. Leichtner, Esq.
Cynthia E. Garabedian, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED TO BE PER SHARE OFFERING PRICE REGISTRATION
REGISTERED FEE
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Common Stock, $0.001 par value 5,438,037 (1) $14.00 (2) $76,132,518 (2) $21,165
Common Stock, $0.001 par value 1,936,358 (3) $ 8.97 (4) $17,369,132 $ 4,829
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TOTAL 7,374,395 93,501,650 $25,994
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(1) Represents the aggregate of 5,038,037 shares available for grant under the
Registrant's 1999 Equity Incentive Plan and 400,000 shares available for
grant under Registrant's 1999 Employee Stock Purchase Plan.
(2) Estimated as of September 22, 1999 pursuant to Rule 457(c) solely pursuant
for the purpose of calculating the registration fee.
(3) Represents certain shares subject to options outstanding as of
September 22, 1999 under the Registrant's 1996 Stock Option Plan and 1999
Stock Option Plan.
(4) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"),
which contains audited financial statements of the Registrant for
the fiscal year ended September 30, 1998.
(b) The description of the Registrant's common stock contained in the
Registrant's Registration Statement on Form 8-A filed under
Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES - SECURITIES TO BE PURCHASED.
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 hereby. An investment partnership and a
partner of Fenwick & West LLP beneficially own an aggregate of 63,461 shares of
the Registrant's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 317 of the California Corporations Code 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 amended (the "Securities
Act").
As permitted by the California Corporations Code, the Registrant's
Articles 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:
- for any breach of the director's duty of loyalty to the Registrant
or its shareholders;
- for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
- for any transaction from which the director derived an improper
personal benefit;
- for acts or omissions that a director believes to be contrary to
the best interests of the Registrant or its shareholders or that
involve the absence of good faith on the part of the director;
- for acts or omissions that show a reckless disregard for the
director's duty to the Registrant or its shareholders in
circumstances in which the director was aware, or should have been
aware, in the
ordinary course of performing a director's duties, of a risk of a
serious injury to the Registrant or its shareholders;
- under Section 310 of the California Corporations Code regarding
contracts in which a director has a material financial interest; or
- under Section 316 of the California Code regarding improper
dividends, loans and guarantees.
As permitted by the California Corporations Code, the Registrant's Bylaws
provide that:
- the Registrant is required to indemnify its directors, officers and
employees to the fullest extent permitted by the California
Corporations Code, subject to certain very limited exceptions;
- the Registrant is required to advance expenses, as incurred, to its
directors, officers and employees in connection with a legal
proceeding to the fullest extent permitted by the California
Corporations Code, subject to certain very limited exceptions;
- the Registrant may enter into agreements with any of its directors,
officers, employees or agents that provides for indemnification of
expenses incurred to the fullest extent permitted by the
Registrant's Articles of Incorporation and California law; and
- the rights conferred in the Bylaws are not exclusive.
The Registrant intends to enter into Indemnification Agreements with
each of its current directors and officers to give such directors and officers
additional contractual assurances regarding the scope of the indemnification set
forth in the Registrant's Articles of Incorporation and to provide additional
procedural protections in the event of litigation. 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.
Reference is also made to Section 7 of the Underwriting Agreement
relating to Registrant's initial public offering, effected pursuant to
Registrant's Registration Statement on Form S-1 (File No. 333-82781) originally
filed with the Commission on July 13, 1999, as subsequently amended (the
"Form S-1"), which provides for the indemnification of officers, directors and
controlling persons of the Registrant against certain liabilities. The
indemnification provision in the Registrant's Articles of Incorporation, Bylaws
and the Indemnity Agreements entered into between the Registrant and each of its
directors and officers maybe sufficiently broad to permit indemnification of the
Registrant's directors and officers for liabilities arising under the Securities
Act.
The Registrant maintains directors' and officers' liability insurance
and expects to obtain a rider to such coverage for securities matters.
See also the undertakings set out in response to Item 9.
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 Articles of
Incorporation (incorporated herein by reference to
Exhibit 3.01 of the Form S-1).
4.02 Registrant's Amended and Restated Articles of
Incorporation (to be filed immediately after the
closing of Registrant's initial public offering)
(incorporated herein by reference to Exhibit 3.02 of
the Form S-1).
4.03 Registrant's Amended and Restated Bylaws (incorporated
herein by reference to
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Exhibit 3.03 of the Form S-1).
4.04 Form of Specimen Certificate for Registrant's common
stock (incorporated herein by reference to Exhibit 4.01
of the Form S-1).
4.05 Third Amended and Restated Investors' Rights Agreement,
dated as of April 26, 1999 (incorporated herein by
reference to Exhibit 4.02 of the Form S-1).
4.06 Registrant's 1996 Stock Option Plan (incorporated
herein by reference to Exhibit 10.02 of the Form S-1).
4.07 Registrant's 1999 Stock Option Plan (incorporated
herein by reference to Exhibit 10.03 of the Form S-1).
4.08 Registrant's 1999 Equity Incentive Plan and related
forms of stock option agreement and stock option
exercise agreement (incorporated herein by reference
to Exhibit 10.04 of the Form S-1).
4.09 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).
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 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 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)(a)(i) and (1)(b)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act of 1934 that are incorporated by reference in the registration statement.
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(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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant'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 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.
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. 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 of 1933, 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 24th day of
September 1999.
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 person whose signature
appears below hereby constitutes and appoints Umang Gupta and John Flavio, 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-8, 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 on September 24, 1999 by the following
persons in the capacities indicated:
Signature Title
/s/ Umang Gupta
- ----------------------------------- Chairman of the Board and Chief
Umang Gupta Executive Officer
/s/ John Flavio
- ----------------------------------- Vice President of Finance, Chief
John Flavio Financial Officer and Secretary
/s/ Eugene Shklar
- ----------------------------------- Director
Eugene Shklar
/s/ David Cowan
- ----------------------------------- Director
David Cowan
/s/ Mark Leslie
- ----------------------------------- Director
Mark Leslie
- ----------------------------------- Director
Stratton Sclavos
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KEYNOTE SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Exhibit Title
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4.01 Registrant's Amended and Restated Articles of
Incorporation (incorporated herein by reference to
Exhibit 3.01 of the Form S-1).
4.02 Registrant's Amended and Restated Articles of
Incorporation (to be filed immediately after the
closing of Registrant's initial public offering)
(incorporated herein by reference to Exhibit 3.02 of
the Form S-1).
4.03 Registrant's Amended and Restated Bylaws (incorporated
herein by reference to Exhibit 3.03 of the Form S-1).
4.04 Form of Specimen Certificate for Registrant's common
stock (incorporated herein by reference to Exhibit 4.01
of the Form S-1).
4.05 Third Amended and Restated Investors' Rights Agreement,
dated as of April 26, 1999 (incorporated herein by
reference to Exhibit 4.02 of the Form S-1).
4.06 Registrant's 1996 Stock Option Plan (incorporated
herein by reference to Exhibit 10.02 of the Form S-1).
4.07 Registrant's 1999 Stock Option Plan (incorporated
herein by reference to Exhibit 10.03 of the Form S-1).
4.08 Registrant's 1999 Equity Incentive Plan and related
forms of stock option agreement and stock option
exercise agreement (incorporated herein by reference to
Exhibit 10.04 of the Form S-1).
4.09 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).
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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