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As filed with the Securities and Exchange Commission on February 29, 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
NIKU CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 77-0473454
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
NIKU CORPORATION
305 MAIN STREET
REDWOOD CITY, CALIFORNIA 94063
(Address of Principal Executive Offices, including Zip Code)
1998 STOCK PLAN
2000 EQUITY INCENTIVE PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full Titles of the Plans)
FARZAD DIBACHI
CHIEF EXECUTIVE OFFICER
NIKU CORPORATION
305 MAIN STREET
REDWOOD CITY, CALIFORNIA 94063
(650) 298-4600
(Name, Address and Telephone Number of Agent for Service)
COPIES TO:
Dennis R. DeBroeck, Esq.
Jeffrey R. Vetter, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
AMOUNT MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.0001 par value 7,647,148 (1) $24.00 $183,531,552 $48,453
Common Stock, $0.0001 par value 4,921,236 (2) $1.03 (3) $5,068,874 $1,339
- ---------------------------------------------------------------------------------------------------
TOTAL 12,568,384 $49,852
===================================================================================================
</TABLE>
(1) Represents the aggregate of 6,647,148 shares available for grant as of
January 29, 2000 under the Registrant's 2000 Equity Incentive Plan and
1,000,000 shares available for grant as of January 29, 2000 under
Registrant's 2000 Employee Stock Purchase Plan.
(2) Represents certain shares subject to options outstanding as of January
29, 2000 under the Registrant's 1998 Stock Plan.
(3) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1).
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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 January 31, 1999 and for the nine months
ended October 31, 1999.
(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. Three investment partnerships of
Fenwick & West LLP beneficially own an aggregate of 55,126 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.
As permitted by the Delaware General Corporation Law, the Registrant's
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:
~ for any breach of the director's duty of loyalty to the Registrant
or its stockholders;
~ for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
~ under Section 174 of the Delaware General Corporation Law
regarding unlawful dividends and stock purchases; or
~ 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 Registrant's
Bylaws provide that:
~ 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;
~ the Registrant may indemnify its other employees and agents to the
fullest extent permitted by the Delaware General Corporation Law,
subject to very limited exceptions;
~ the Registrant is required to advance expenses, as incurred, to
its directors and officers in connection with a legal proceeding;
~ the Registrant may advance expenses, as incurred, to its employees
and agents in connection with a legal proceeding; and
~ the rights conferred in the Bylaws are not exclusive.
The Registrant has entered into Indemnification Agreements with each of
its current 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 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 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 8 of the Underwriting Agreement
relating to Registrant's initial public offering, effected pursuant to
Registrant's Registration Statement on Form S-1 (File No. 333-93439) originally
filed with the Commission on December 22, 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 Certificate of Incorporation,
Bylaws and the Indemnification Agreements entered into between the Registrant
and each of its directors and officers may be 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.
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<CAPTION>
Exhibit
Number Exhibit Title
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<S> <C>
4.01 Registrant's Amended and Restated Certificate of
Incorporation, as amended through November 17, 1999
(incorporated herein by reference to Exhibit 3.01 of the
Form S-1).
4.02 Registrant's Form of Amended and Restated Certificate 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).
</TABLE>
2
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<TABLE>
<S> <C>
4.04 Registrant's Form of Amended and Restated Bylaws (to be
filed immediately after the closing of Registrant's
initial public offering) (incorporated herein by reference
to Exhibit 3.04 of the Form S-1).
4.05 Form of Specimen Certificate for Registrant's common stock
(incorporated herein by reference to Exhibit 4.01 of the
Form S-1).
4.06 Fourth Amended and Restated Investors' Rights Agreement,
dated November 18, 1999 as amended in December 1999
(incorporated herein by reference to Exhibit 4.02 of the
Form S-1).
4.07 Registrant's 1998 Stock Plan, as amended (incorporated
herein by reference to Exhibit 10.02 of the Form S-1).
4.08 Registrant's 2000 Equity Incentive Plan (incorporated
herein by reference to Exhibit 10.03 of the Form S-1).
4.09 Registrant's 2000 Employee Stock Purchase Plan
(incorporated herein by reference to Exhibit 10.04 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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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 that are incorporated by reference in the registration statement.
3
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(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
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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 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.
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 Commission such indemnification is
against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
4
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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 Redwood City, State of California, on this 29th day
of February, 2000.
NIKU CORPORATION
By: /s/ Farzad Dibachi
---------------------------------
Niku Corporation
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Farzad Dibachi, Joshua Pickus,
Mark Nelson and Harold Slawik, 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 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, this Registration
Statement has been signed on February 29, 2000 by the following persons in the
capacities indicated:
Signature Title
/s/ Farzad Dibachi Chief Executive Officer and Director
- ------------------------------------
Farzad Dibachi
/s/ Mark Nelson Chief Financial Officer
- ------------------------------------
Mark Nelson
/s/ Michael Brooks Director
- ------------------------------------
Michael Brooks
/s/ John Chen Director
- ------------------------------------
John Chen
/s/ Terence Garnett Director
- ------------------------------------
Terence Garnett
/s/ William Raduchel Director
- ------------------------------------
William Raduchel
/s/ Maynard Webb Director
- ------------------------------------
Maynard Webb
5
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NIKU CORPORATION
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 Certificate of
Incorporation, as amended through November 17, 1999
(incorporated herein by reference to Exhibit 3.01 of the
Form S-1).
4.02 Registrant's Form of Amended and Restated Certificate 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 Registrant's Form of Amended and Restated Bylaws (to be
filed immediately after the closing of Registrant's
initial public offering) (incorporated herein by reference
to Exhibit 3.04 of the Form S-1).
4.05 Form of Specimen Certificate for Registrant's common stock
(incorporated herein by reference to Exhibit 4.01 of the
Form S-1).
4.06 Fourth Amended and Restated Investors' Rights Agreement,
dated November 18, 1999 as amended in December 1999
(incorporated herein by reference to Exhibit 4.02 of the
Form S-1).
4.07 Registrant's 1998 Stock Plan, as amended (incorporated
herein by reference to Exhibit 10.02 of the Form S-1).
4.08 Registrant's 2000 Equity Incentive Plan (incorporated
herein by reference to Exhibit 10.03 of the Form S-1).
4.09 Registrant's 2000 Employee Stock Purchase Plan
(incorporated herein by reference to Exhibit 10.04 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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EXHIBIT 5.01
February 28, 2000
Niku Corporation
305 Main Street
Redwood City, California 94064
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 February 28, 2000 in
connection with the registration under the Securities Act of 1933, as amended,
of an aggregate of 12,568,384 shares of your Common Stock (the "STOCK") subject
to issuance by you upon the exercise of: (1) stock options granted by you under
your 1998 Stock Plan (the "1998 PLAN"); (2) stock options to be granted by you
under your 2000 Equity Incentive Plan (the "2000 EQUITY PLAN"); and (3) purchase
rights to be granted by you under your 2000 Employee Stock Purchase Plan (the
"2000 PURCHASE PLAN"). The plans referred to in clauses (1) through (3) 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. 333-93439) filed
with, and declared effective by, the Commission on February 28,
2000, together with the Exhibits filed as a part thereof,
including without limitation, each of the Plans;
(2) your registration statement on Form 8-A (File No. 000-28797),
filed with the Commission on January 6, 2000, together with the
order of effectiveness issued by the Commission therefor on
February 24, 2000;
(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
stockholders and Board of Directors that are contained in your
minute books that are in our possession;
(6) the stock records for you that you have provided to us (consisting
of a list of stockholders 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
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Niku Corporation
February 28, 2000
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.
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 and the existing Delaware General Corporation Law.
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 12,568,384 shares of
Stock that may be issued and sold by you upon the exercise of: (1) stock options
granted under the 1998 Plan; (2) stock options to be granted under the 2000
Equity Plan; and (3) purchase rights to be granted under the 2000 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.
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.
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Niku Corporation
February 28, 2000
Page 3
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
/s/ Fenwick & West LLP
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Exhibit 23.02
Consent of KPMG LLP, independent auditors
We consent to incorporation herein by reference of our report dated December 17,
1999, except as to Note 9(d), which is as of January 31, 2000, and Note 9(e),
which is as of February 21, 2000, relating to the consolidated balance sheets of
Niku Corporation and subsidiaries as of January 31, 1999, and October 31, 1999,
and the related consolidated statements of operations, stockholders' equity
(deficit), and cash flows for the year ended January 31, 1999, and the
nine-month period ended October 31, 1999, which report appears in the prospectus
filed pursuant to Rule 424(b) of the Securities Act of 1933 on February 28, 2000
of Niku Corporation.
KPMG LLP
Mountain View, California
February 25, 2000
