exv10w9



 







EXHIBIT 10.9




Keynote Systems, Inc.




SECURITIES REPURCHASE PLAN




     Pursuant to the authority (the “Board Authority”) granted by the Board of Directors of Keynote
Systems, Inc. (the “Purchaser”) at its meeting held January 21, 2005, the Purchaser was authorized
to repurchase up to 1 million shares of its common stock (the “Securities”).




	1.	 	The Purchaser hereby requests UBS Securities LLC (“UBS”) to act as its agent to purchase the
Securities pursuant to the plan described herein (the “Plan”). All purchases by UBS pursuant
to this Plan and all actions taken by the Purchaser in respect of the institution of this Plan
shall be subject to the provisions of the letter agreement between the Purchaser and UBS dated
January 25, 2005. The Purchaser agrees not to take, nor permit any person or entity under its
control to take, any action that could reasonably be expected to jeopardize the availability
of Rule 10b-18 (“Rule 10b-18”) under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) for the repurchases pursuant to the Plan.






	2.	 	If, following a request pursuant to Paragraph 1, UBS agrees in writing to purchase Securities
pursuant to the Plan:






	 	(a)	 	UBS shall conduct its purchase of Securities pursuant to this Plan on behalf
of the Purchaser until terminated in accordance with the provisions of the following
sentence. The Plan shall take effect of June 12 2006, and terminate on the earlier of
(i) the close of business on December 11, 2006, (ii) the date on which the Maximum
Amount (as defined below) of Securities have been purchased, (iii) the date on which
UBS terminates its appointment in accordance with the following sentence and (iv) the
date, if any, the Purchaser notifies UBS that the Purchaser’s outside counsel has
advised the Purchaser that repurchases under this Plan may violate an applicable law,
rule or regulation. UBS may terminate its appointment on written notice to the
Purchaser. Any termination under (iii) or (iv) shall be effective on the first
business day after the day on which the notice is given, provided that such
termination shall be effective when the notice is given if required by law. Such
written notice may be made by facsimile, as provided in Paragraph 2(l).
Notwithstanding termination, the Purchaser shall be solely responsible for any
purchases made by UBS on the Purchaser’s behalf prior to UBS’s receipt of such written
notice of termination.
	 
	 	(b)	 	The Purchaser will not give any instructions with respect to the execution of
this Plan to UBS and UBS will not take any instructions from the Purchaser, other than
as described in Paragraph 2(f) below. The Purchaser will not communicate any
non-public information to the [equities division – note the breadth of this
restriction needs to be considered on a case by case basis in light of the
relationships the Purchaser has with various ‘equities’ divisions, including ECM] of
UBS during the term of this Plan.
	 
	 	(c)	 	The Purchaser will notify UBS (i) of the intention on the part of any
affiliated purchaser, as defined in Rule 10b-18, of the Purchaser to purchase
Securities on any day if such purchase is to be effected otherwise than through UBS
pursuant to this Plan, and (ii) if the Purchaser is engaged in a distribution of
Securities within the meaning of Regulation M under the Exchange Act, and upon receipt
of such notification UBS shall refrain from purchasing any Securities hereunder on
such day. The Purchaser shall be solely responsible for any purchases made by UBS on
the Purchaser’s behalf prior to UBS’s receipt of such notification. Notwithstanding
this and the preceding paragraphs, if UBS receives a notice to terminate or suspend
purchases for any reason, UBS shall nevertheless be entitled to make, and the
Purchaser shall be solely responsible for, a purchase hereunder pursuant to a bid made
before such termination or suspension is to become effective.
	 
	 	(d)	 	On the date UBS agrees to purchase Securities pursuant to the Plan, the
Purchaser will be deemed to have given an irrevocable order to UBS to purchase, during
the period from June 12, 2006 until December 11, 2006 (inclusive), at then prevailing
prices and in accordance with the terms of this Plan and the letter agreement referred
to above, a maximum of 1,000,000 Securities at a price of $13.00 per share or less.
UBS shall be permitted to buy a block of stock that exceeds the applicable 10b-18
volume limits on any given day, provided that no other 10b-18 purchases are made and
the price does not exceed $11.50 per share.
	 
	 	 	 	UBS and the Purchaser intend that the purchase of Securities contemplated by this Plan
comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act, and
shall be interpreted so as to comply with the requirements of Rule 10b5-1(c).
Accordingly, the Purchaser represents to UBS that as of the date of any initial
purchase under the plan pursuant to Paragraph 1, the Purchaser is not aware of material
non-public information with respect to the Purchaser or any of its securities,
including the Securities and is entering into this Plan in good faith and not as a part
of a plan or scheme to evade the prohibitions of Rule 10b5-1. The Purchaser
acknowledges that Rule 10b5-1 does not permit the Purchaser to (i) exercise any
influence over how, when or whether UBS effects purchases of the Securities
contemplated by this Plan or (ii) alter or deviate from this Plan or to change the
number of Securities, price or timing of the purchases of Securities contemplated
hereby.
	 
	 	 	 	Except as otherwise provided in this Plan, UBS shall determine, in its sole discretion,
the timing, amount, prices and manner of purchase of Securities during such period, so
long as such purchases are within the limits established by the Purchaser for such
period.
	 
	 	(e)	 	UBS shall provide confirmations of purchases of Securities to the Purchaser
promptly and to other persons as the Purchaser designates in writing. In addition UBS
shall provide reports of such transactions to the Purchaser or its designee as agreed
by the Purchaser and UBS.
	 
	 	(f)	 	The Purchaser shall pay for the Securities within three business days after
purchase. Purchased Securities will be held or delivered in accordance with the
Purchaser’s written instructions. The Purchaser agrees to pay to UBS a fee of $0.03
per share for Securities purchased pursuant to this Plan.
	 
	 	(g)	 	On the date the Purchaser makes a request pursuant to Paragraph 1, the
Purchaser will be deemed to represent and warrant to UBS that: this Plan and the
transactions contemplated by this Plan have been duly authorized by the Purchaser;
upon UBS’s agreement to purchase Securities pursuant to this Plan, this Plan is the
valid and binding agreement of the Purchaser, enforceable in accordance with its
terms; performance of the transactions contemplated herein will not violate any law,
rule,




 









 












	 	 	 	regulation, order, judgement or decree applicable to the Purchaser or conflict with or
result in a breach of or constitute a default under any agreement or instrument to
which the Purchaser is a party or by which it or any of its property is bound; no
governmental, administrative or official consent, approval, authorization, notice or
filing is required to perform the transactions contemplated herein; and it has publicly
disclosed its intention to institute the Plan for the acquisition of the Securities
contemplated hereby.
	 
	 	(h)	 	The Purchaser shall indemnify UBS and its affiliates and employees against
any liabilities or expenses (including reasonable attorney’s fees and disbursements),
or actions in respect of any liabilities or expenses, arising from or relating to the
services furnished pursuant to, or from any matter referred to in, this Plan
including, but not limited to, liabilities and expenses arising by reason of any
violation or alleged violation of any state or federal securities laws, except to the
extent such liabilities or expenses result from gross negligence or bad faith of UBS
or its affiliates. The Purchaser shall also promptly reimburse UBS and its affiliates
for all reasonable expenditures (including reasonable attorney’s fees and
disbursements) made to investigate, prepare or defend any action or claim in respect
of any such liability or expense, regardless of whether any litigation is pending or
threatened against UBS or its affiliates. The provisions of this paragraph shall
survive the termination of this Plan.
	 
	 	(i)	 	All communications and notices shall be in writing (including facsimile
transmissions) or confirmed in writing (including facsimile transmissions) and (unless
provided otherwise) shall be effective when received at the address specified below or
such other address designated by written notice to the other party:






	 	(i)	 	if to UBS, to it at:




UBS Securities LLC

677 Washington Blvd.

6th Floor Trading South

Stamford, CT 06901

Attn: Young Z. Kim





	 	(ii)	 	if to the Purchaser, to it at




Keynote Systems, Inc.

777 Mariners Island Boulevard

San Mateo, CA 94404

Attn: Drew Hamer — Chief Financial Officer





	 	(j)	 	Neither party may assign its rights and obligations under this Plan to any
other party, provided however that UBS may assign its rights and obligations under
this Plan to any affiliate of UBS.






	3.	 	Neither party shall refer to the other or any affiliate of the other in any public statement
or disclosure document without the prior consent of the other party or such affiliate.
	 
	4.	 	This Plan shall be governed by and construed in accordance with the law of the State of New
York (without giving effect to any provisions thereof relating to conflicts of law).





Dated: 6/8/06




Keynote Systems, Inc.




	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Andrew Hamer	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	Name: Andrew Hamer	 	 	 	 	 	 	 	 
	Title: Chief Financial Officer	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	UBS Securities LLC	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Daniel Covatta
	 	 
	 	By:
	 	/s/ Richard Ryan
	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	Name: Daniel Covatta	 	 	 	Name: Richard Ryan	 	 
	Title: Executive Director	 	 	 	Title: Associate Director