<PAGE>
As filed with the Securities and Exchange Commission on June 28, 1999
Registration No. 333-______
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
ARIBA, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7372 77-0439730
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code Number) Identification No.)
1314 CHESAPEAKE TERRACE
SUNNYVALE, CALIFORNIA 94089
(408) 543-3800
(Address of principal executive offices) (Zip Code)
</TABLE>
-------------------
ARIBA, INC. 1999 EQUITY INCENTIVE PLAN
ARIBA, INC. EMPLOYEE STOCK PURCHASE PLAN
ARIBA, INC. INTERNATIONAL EMPLOYEE STOCK PURCHASE PLAN
ARIBA, INC. 1999 DIRECTORS' STOCK OPTION PLAN
(Full title of the Plans)
-------------------
KEITH J. KRACH
PRESIDENT, CHIEF EXECUTIVE OFFICER
ARIBA, INC.
1314 CHESAPEAKE TERRACE
SUNNYVALE, CALIFORNIA 94089
(Name and address of agent for service)
(408) 543-3800
(Telephone number, including area code, of agent for service)
-------------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Title of Proposed Maximum Proposed Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) per Share Price (2) Fee
---------- ---------- --------- ----- ---
<S> <C> <C> <C> <C>
1999 EQUITY INCENTIVE PLAN (3)
Options N/A N/A N/A
Common Stock (par value $.002) 12,229,751 shares $23.00(2) $281,284,273(2) $78,198
EMPLOYEE STOCK PURCHASE PLAN
Rights to Purchase 4,000,000 N/A N/A N/A
Common Stock (par value $.002) 4,000,000 shares $23.00(2) $92,000,000(2) $25,576
INTERNATIONAL EMPLOYEE STOCK
PURCHASE PLAN
Rights to Purchase 4,000,000 N/A N/A N/A
Common Stock (par value $.002) 4,000,000 shares N/A N/A N/A
1999 DIRECTORS' STOCK OPTION PLAN
Options 500,000 N/A N/A N/A
Common Stock (par value $.002) 500,000 shares $23.00(2) $11,500,000(2) $3,197
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1999 Equity Incentive
Plan, the Employee Stock Purchase Plan and the International Employee
Stock Purchase Plan, and the 1999 Directors' Stock Option Plan by
reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which
results in an increase in the number of the outstanding shares of
Common Stock of Ariba, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the fair market
value per share of Common Stock of Ariba, Inc. on June 22, 1999.
(3) Includes 9,670,848 shares subject to options outstanding under the
predecessor 1996 Stock Plan.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Ariba, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed
with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's prospectus filed with the SEC pursuant to
Rule 424(b) of the Securities Act of 1933, as amended (the
"1933 Act"), in connection with the Registration Statement No.
333-76953 on Form S-1 filed with the SEC on April 23, 1999,
together with any and all amendments thereto, in which there
is set forth audited financial statements for the Registrant's
fiscal years ended September 30, 1997 and 1998; and
(b) The Registrant's Registration Statement No. 000-26299 on Form
8-A filed with the SEC on June 8, 1999, together with all
amendments thereto, pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "1934 Act") in which
there is described the terms, rights and provisions applicable
to the Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold
or which deregisters all securities then remaining unsold shall be deemed to
be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
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 indemnification
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 1933 Act. Article VII,
Section 6, of the Registrant's Bylaws provides for mandatory indemnification
of its directors and officers and permissible indemnification of employees
and other agents to the maximum extent permitted by the Delaware General
Corporation Law. The Registrant's Certificate of Incorporation provides that,
pursuant to Delaware law, its directors shall not be liable for monetary
damages for breach of their fiduciary duty as directors to the Registrant and
its stockholders. This provision in the Certificate of Incorporation does not
eliminate the fiduciary duty of the directors, and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition,
each director will continue to be subject to liability for breach of the
director's duty of loyalty to the Registrant for acts or omissions not in
good faith or involving intentional misconduct, for knowing violations of
law, for actions leading to improper personal benefit to the director and for
payment of dividends or approval of stock repurchases or redemptions that are
unlawful under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws. The Registrant has entered into
Indemnification Agreements with its officers and directors. The
Indemnification Agreements provide the
II-1
<PAGE>
Registrant's officers and directors with further indemnification to the
maximum extent permitted by the Delaware General Corporation Law.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Exhibit
- -------------- -------
<S> <C>
4 Instrument Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 000-26299
on Form 8-A, together with all amendments thereto, which
is incorporated herein by reference pursuant to Item 3(d)
of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
</TABLE>
Item 9. UNDERTAKINGS
A. 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 1933 Act, (ii) to reflect in the
prospectus any facts or events arising after the effective date of this
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 this Registration Statement and (iii) to include
any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; PROVIDED, however, that
clauses (1)(i) and (1)(ii) shall 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 SEC by the Registrant
pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated
by reference in this Registration Statement; (2) that for the purpose of
determining any liability under the 1933 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 and (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
Registrant's 1999 Equity Incentive Plan, Employee Stock Purchase Plan and
International Employee Stock Purchase Plan, and the 1999 Directors' Stock
Option Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference in this 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.
C. Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers or controlling persons
of the Registrant pursuant to the indemnification provisions summarized in
Item 6 or otherwise, the Registrant has been advised that, in the opinion of
the SEC, such indemnification is against public policy as expressed in the
1933 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
II-2
<PAGE>
court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the 1933 Act and will be
governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, 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 Sunnyvale, State of
California on this 25th day of June, 1999.
ARIBA, INC.
By: /s/ Keith J. Krach
-------------------------------------
Keith J. Krach
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Ariba, Inc.,
a Delaware corporation, do hereby constitute and appoint Keith J. Krach and
Edward P. Kinsey, and either of them, the lawful attorneys-in-fact and agents
with full power and authority to do any and all acts and things and to
execute any and all instruments which said attorneys and agents, and either
one of them, determine may be necessary or advisable or required to enable
said corporation to comply with the Securities Act of 1933, as amended, and
any rules or regulations or requirements of the Securities and Exchange
Commission in connection with this Registration Statement. Without limiting
the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this Registration
Statement, to any and all amendments, both pre-effective and post-effective,
and supplements to this Registration Statement, and to any and all
instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms all that said attorneys and agents,
or either one of them, shall do or cause to be done by virtue hereof. This
Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed
this Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/Keith J. Krach President, Chief Executive Officer and Director June 25, 1999
- ---------------------------------------- (Principal Executive Officer)
Keith J. Krach
/s/Edward P. Kinsey Chief Financial Officer Vice President-Finance and June 25, 1999
- ---------------------------------------- Administration (Principal Financial and
Edward P. Kinsey Accounting Officer) and Secretary
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/Robert C. Kagle Director June 25, 1999
- ----------------------------------------
Robert C. Kagle
Director
- ----------------------------------------
Paul Hegarty
/s/John B. Mumford Director June 25, 1999
- ----------------------------------------
John B. Mumford
Director
- ----------------------------------------
Hatim A. Tyabji
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Exhibit
- -------------- -------
<S> <C>
4 Instrument Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 000-26299
on Form 8-A, together with all amendments thereto, which
is incorporated herein by reference pursuant to Item 3(d)
of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of KPMG LLP, Independent Accountants.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
</TABLE>
<PAGE>
Exhibit 5
June 28, 1999
Ariba, Inc.
1314 Chesapeake Terrace
San Jose, California
Re: Ariba, Inc. (the "Company")
Registration Statement for
an aggregate of 16,729,751 Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of (i) 12,229,751
shares of Common Stock available for issuance under the Company's 1999 Equity
Incentive Plan, (ii) 4,000,000 shares of Common Stock available for issuance
under the Company's Employee Stock Purchase Plan and International Employee
Stock Purchase Plan and (iii) 500,000 shares of Common Stock available for
issuance under the Company's 1999 Directors' Stock Option Plan. We advise you
that, in our opinion, when such shares have been issued and sold pursuant to
the applicable provisions of the 1999 Equity Incentive Plan, the Employee
Stock Purchase Plan and the International Employee Stock Purchase Plan, and
the 1999 Directors' Stock Option Plan and in accordance with the Registration
Statement, such shares will be validly issued, fully paid and nonassessable
shares of Ariba, Inc.'s Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP
--------------------------------------------------
Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Ariba, Inc.
We consent to incorporation by reference in the registration statement on
Form S-8 of Ariba, Inc. of our report dated April 22, 1999, relating to the
consolidated financial statements of Ariba, Inc. and subsidiaries as of
September 30, 1997 and 1998 and the related consolidated statements of
operations and other comprehensive income (loss), stockholders' equity, and
cash flows for each of the years then ended, which report appears in the
registration statement (No. 333-76953) on Form S-1 of Ariba, Inc.
San Jose, California /s/ KPMG LLP
June 25, 1999 -------------------------------
KPMG LLP
