<PAGE>
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
<TABLE>
<CAPTION>
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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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<S> <C> <C> <C> <C>
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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</TABLE>
(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).
<PAGE>
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
<PAGE>
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.
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Title
------ -----------------------------------------------
<S> <C>
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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<PAGE>
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).
</TABLE>
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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<PAGE>
(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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<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-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
-------------------------------
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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<PAGE>
KEYNOTE SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Title
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<S> <C>
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).
</TABLE>
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<PAGE>
EXHIBIT 5.01
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September 23, 1999
Keynote Systems, Inc.
2855 Campus Drive
San Mateo, California 94043
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "REGISTRATION STATEMENT") to be filed by you with the Securities and
Exchange Commission (the "COMMISSION") on or about September 23, 1999 in
connection with the registration under the Securities Act of 1933, as amended,
of an aggregate of 7,374,395 shares of your Common Stock (the "STOCK") subject
to issuance by you upon the exercise of: (1) stock options granted by you under
your 1996 Stock Option Plan (the "1996 PLAN"); (2) stock options granted by you
under your 1999 Stock Option Plan (the "1999 OPTION PLAN"); (3) stock options
granted or to be granted by you under your 1999 Equity Incentive Plan (the "1999
EQUITY PLAN"); and (4) purchase rights granted or to be granted by you under
your 1999 Employee Stock Purchase Plan (the "1999 PURCHASE PLAN"). The plans
referred to in clauses (1) through (4) above are collectively referred to in
this letter as the "PLANS." In rendering this opinion, we have examined the
following:
(1) your registration statement on Form S-1 (File No. 333-82781) filed
with, and declared effective by, the Commission on September 23,
1999, together with the Exhibits filed as a part thereof, including
without limitation, each of the Plans and related stock option
grant or purchase and exercise agreements;
(2) your registration statement on Form 8-A (File No. 000-27241), filed
with the Commission on September 3, 1999, together with the order
of effectiveness issued by the Commission therefor on September 23,
1999;
(3) the Registration Statement, together with the Exhibits filed as a
part thereof;
(4) the Prospectuses prepared in connection with the Registration
Statement;
(5) the minutes of meetings and actions by written consent of the
shareholders and Board of Directors that are contained in your
minute books that are in our possession;
(6) the stock records that you have provided to us (consisting of a
list of shareholders of even date herewith and a list of option and
warrant holders of even date herewith respecting your capital and
of any rights to purchase capital stock, which you have represented
to us are true and complete as of their dates); and
<PAGE>
Keynote Systems, Inc.
September 23, 1999
Page 2
(7) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and
other representations.
We have also confirmed the continued effectiveness of your registration
under the Securities Exchange Act of 1934, as amended, by telephone call to the
offices of the Commission and have confirmed your eligibility to use Form S-8.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all natural persons executing the same, the lack
of any undisclosed terminations, modifications, waivers or amendments to any
documents reviewed by us and the due authorization, execution and delivery of
all documents where due authorization, execution and delivery are prerequisites
to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the current
accuracy and completeness of the information obtained from public officials and
records referred to above. We have made no independent investigation or other
attempt to verify the accuracy of any of such information or to determine the
existence or non-existence of any other factual matters; HOWEVER, we are not
aware of any facts that would cause us to believe that the opinion expressed
herein is not accurate.
We are admitted to practice law in the State of California, and we express
no opinion herein with respect to the application or effect of the laws of any
jurisdiction other than the existing laws of the United States of America and
the State of California.
In connection with our opinion expressed below, we have assumed that, at
or prior to the time of the delivery of any shares of Stock, the Registration
Statement will have become effective under the Securities Act of 1933, as
amended, that the registration will apply to such shares of Stock and will not
have been modified or rescinded and that there will not have occurred any change
in law affecting the validity or enforceability of such shares of Stock.
Based upon the foregoing, it is our opinion that the 7,374,395 shares of
Stock that may be issued and sold by you upon the exercise of: (1) stock options
granted under the 1996 Plan; (2) stock options granted under the 1999 Option
Plan; (3) stock options granted or to be granted under the 1999 Equity Plan; and
(4) purchase rights granted or to be granted under the 1999 Purchase Plan, when
issued and sold in accordance with the applicable plan and stock option or
purchase agreements entered into or to be entered into thereunder, and in the
manner referred to in the relevant Prospectus associated with the Registration
Statement, will be validly issued, fully paid and nonassessable.
<PAGE>
Keynote Systems, Inc.
September 23, 1999
Page 3
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for the your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Stock and is not to be relied
upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: /s/ Jeffrey R. Vetter
------------------------------------
<PAGE>
Exhibit 23.02
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to incorporation herein by reference of our report dated August 6,
1999, except as to note 12(c) which is as of September 20, 1999, relating to
the balance sheets of Keynote Systems, Inc. and as September 30, 1997 and
1998, and June 30, 1999, and the related statements of operations,
stockholders' equity (deficit), and cash flows for each of the years in the
three-year period ended September 30, 1998, and the nine month period ended
June 30, 1999, which report appears in Registration Statement No 333-82781 of
Keynote Systems, Inc.
/s/ KPMG LLP
Mountain View, California
September 22, 1999
