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As filed with the Securities and Exchange Commission on August 31, 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)
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DELAWARE 77-0473454
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
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NIKU CORPORATION
305 MAIN STREET
REDWOOD CITY, CALIFORNIA 94063
(Address of Principal Executive Offices, including Zip Code)
NIKU CORPORATION 2000 EQUITY INCENTIVE PLAN
(FOR OPTIONS GRANTED UNDER APPLIED BUSINESS TECHNOLOGY CORPORATION
UK APPROVED SHARE OPTION SUBPLAN AND ASSUMED BY REGISTRANT)
(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
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE OFFERING PRICE AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
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Common Stock, $0.0001 par value 77,671 (1) $18.79(2) $1,459,439(2) $386
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(1) Represents 77,671 shares subject to options outstanding as of August 30,
2000 under Registrant's 2000 Equity Incentive Plan, such options issued by
Registrant in exchange for options assumed by Registrant in connection with
Registrant's acquisition of ABT Corporation.
(2) Estimated as of August 28, 2000 pursuant to Rule 457(c) solely for purposes
of calculating the registration fee, based on the average of the high and
low prices of the Registrant's common stock as reported by the Nasdaq
National Market on August 28, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Except to the extent modified or superseded by information contained
herein, the following documents we have filed with the Commission are
incorporated herein by reference:
o the Registration Statement on Form S-8 of which this prospectus
is a part, and the exhibits filed with the registration statement
and incorporated into the registration statement by reference;
o our quarterly report on Form 10-Q for the quarterly period ended
April 29, 2000;
o our Annual Report on Form 10-K for the fiscal year ended January
29, 2000 filed with the Commission on April 28, 2000, which
contains our audited consolidated financial statements as of
January 29, 2000 and 1999 and for each of the years then ended;
o the description of our common stock contained in our registration
statement on Form 8-A filed with the Commission on January 6, 2000
under Section 12(g) of the Exchange Act, including any amendment or
report filed for the purpose of updating such description; and
o all documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this
prospectus and before the termination of this offering.
To the extent that any statement herein is inconsistent with any statement
that is incorporated by reference, the statement herein shall control. Such
inconsistent incorporated statement shall not be deemed, except as modified or
superceded, to constitute a part of this prospectus or the registration
statement.
Because we are subject to the informational requirements of the Exchange
Act, we file reports and other information with the Commission. You may obtain
copies of this material from the Public Reference Room of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 at rates prescribed by the
Commission. The public may obtain information on the operation of the Public
Reference Room by calling the Commission at 1-800-SEC-0330. Reports, proxy and
information statements and other information that we file electronically with
the Commission are available at the Commission's web site at http://www.sec.gov.
We will furnish without charge to each person to whom a copy of this
prospectus is delivered, upon written or oral request, a copy of the information
that has been incorporated into this prospectus by reference (except exhibits,
unless they are specifically incorporated by reference into this prospectus).
You should direct any requests for copies to Investor Relations, Niku
Corporation, 305 Main Street, Redwood City, California 95063.
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 issuance of the shares of common stock offered by this prospectus. As of
July 31, 2000, three investment partnerships associated with Fenwick & West LLP
beneficially owned an aggregate of 55,126 shares of our 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.
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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:
o for any breach of the director's duty of loyalty to the Registrant or
its stockholders;
o for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
o under Section 174 of the Delaware General Corporation Law regarding
unlawful dividends and stock purchases; or
o for any transaction from which the director derived an improper
personal benefit.
As permitted by the Delaware General Corporation Law, the Registrant's
Bylaws provide that:
o 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;
o 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;
o the Registrant is required to advance expenses, as incurred, to its
directors and officers in connection with a legal proceeding;
o the Registrant may advance expenses, as incurred, to its employees and
agents in connection with a legal proceeding; and
o 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.
Reference is also made to the following documents regarding relevant
indemnification provisions described above and elsewhere herein:
1. Registrant's Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.01 filed with the Form 10-K).
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2. Registrant's Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.02 filed with the Form 10-K).
3. Form of Indemnity Agreement entered into between the Registrant and
its directors and officers (incorporated by reference as an exhibit to
the Form S-1).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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Exhibit
Number Exhibit Title
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4.01 Registrant's Amended and Restated Certificate of Incorporation. +
4.02 Registrant's Amended and Restated Bylaws. +
4.03 Applied Business Technology Corporation UK Approved Share Option Subplan.
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 auditors.
24.01 Power of Attorney (see signature page to this Registration Statement).
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+ Previously filed with the Commission as an exhibit to the Company's Annual
Report on Form 10-K for the year ended January 29, 2000.
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 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
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Commission by Registrant pursuant to Section 13 or Section 15(d) of the 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
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.
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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 31st day
of August, 2000.
NIKU CORPORATION
By: /s/ Farzad Dibachi
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Niku Corporation
Chief Executive Officer and
Chairman of the Board
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 John Danforth, 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 August 31, 2000 by the following persons in the
capacities indicated:
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SIGNATURE TITLE
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/s/ Farzad Dibachi Chief Executive Officer and Chairman of the Board
---------------------------------- (Principal Executive Officer)
FARZAD DIBACHI
/s/ Mark Nelson Chief Financial Officer (Principal Financial Officer and
---------------------------------- Principal Accounting Officer)
MARK NELSON
/s/ John Chen Director
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JOHN CHEN
/s/ Terence Garnett Director
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TERENCE GARNETT
/s/ Frank Gill Director
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FRANK GILL
/s/ William Raduchel Director
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WILLIAM RADUCHEL
/s/ Maynard Webb Director
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MAYNARD WEBB
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NIKU CORPORATION
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
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Exhibit
Number Exhibit Title
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4.01 Registrant's Amended and Restated Certificate of Incorporation. +
4.02 Registrant's Amended and Restated Bylaws. +
4.03 Applied Business Technology Corporation UK Approved Share Option Subplan.
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 auditors.
24.01 Power of Attorney (see signature page to this Registration Statement).
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+ Previously filed with the Commission as an exhibit to the Company's Annual
Report on Form 10-K for the year ended January 29, 2000.
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