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As filed with the Securities and Exchange Commission on January 28, 2000
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ARIBA, INC.
(Exact name of registrant as specified in its charter)
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<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.)
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1565 CHARLESTON ROAD
MOUNTAIN VIEW, CALIFORNIA 94043
(650) 930-6200
(Address of principal executive offices) (Zip Code)
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TRADING DYNAMICS 1998 STOCK PLAN
TRADING DYNAMICS 1999 STOCK PLAN
(Full title of the Plans)
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EDWARD P. KINSEY
CHIEF FINANCIAL OFFICER, VICE PRESIDENT FINANCE AND ADMINISTRATION
ARIBA, INC.
1565 CHARLESTON ROAD
MOUNTAIN VIEW, CALIFORNIA 94043
(Name and address of agent for service)
(650) 930-6200
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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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
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<S> <C> <C> <C> <C>
TRADING DYNAMICS 1998 STOCK PLAN
Options 488,964 N/A N/A N/A
Common Stock (par value $.002) 488,964 shares $10.2194(2) $ 4,996,918.702(2) $1,319.187
TRADING DYNAMICS 1999 STOCK PLAN
Options 514,991 N/A N/A N/A
Common Stock (par value $.002) 514,991 shares $44.8474(2) $23,096,007.37(2) $6,097.346
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Trading Dynamics 1998
Stock Plan and Trading Dynamics 1999 Stock 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 weighted
average exercise price of the outstanding options.
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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 Annual Report on Form 10-K for the fiscal year ended
September 30, 1999;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1999; and
(c) The Registrant's Report on Form 8-K filed January 25, 2000; and
(d) The Registrant's Registration Statement No. 000-26299 on Form 8-A filed
with the SEC on January 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 Registrant's officers and
directors with further indemnification to the maximum extent permitted by the
Delaware General Corporation Law.
II-1
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
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Exhibit Number Exhibit
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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-5 of this
Registration Statement.
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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 Trading Dynamics 1998 Stock Plan and Trading
Dynamics 1999 Stock 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 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-2
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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 Mountain View, State
of California on this 27th day of January, 2000.
ARIBA, INC.
By: /s/ Keith J. Krach
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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.
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Signature Title Date
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/s/ Keith J. Krach
- ------------------------------------- President, Chief Executive Officer and Director January 27, 2000
Keith J. Krach (Principal Executive Officer)
/s/ Edward P. Kinsey
- ------------------------------------- Chief Financial Officer Vice President-Finance and January 27, 2000
Edward P. Kinsey Administration (Principal Financial and Accounting
Officer) and Secretary
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Signature Title Date
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<S> <C> <C>
/s/ Robert C. Kagle
- ------------------------------------- Director January 27, 2000
Robert C. Kagle
/s/ Paul Hegarty
- ------------------------------------- Director January 27, 2000
Paul Hegarty
/s/ John B. Mumford
- ------------------------------------- Director January 27, 2000
John B. Mumford
/s/ Hatim A. Tyabji
- ------------------------------------- Director January 27, 2000
Hatim A. Tyabji
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EXHIBIT INDEX
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Exhibit Number Exhibit
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<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-5 of this
Registration Statement.
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EXHIBIT 5
January 28, 2000
Ariba, Inc.
1565 Charleston Road
Mountain View, California 94043
Re: Ariba, Inc. (the "Company")
Registration Statement for
an aggregate of 1,003,955 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 1,003,955 shares of
Common Stock available for issuance under the Company's Trading Dynamics 1998
Stock Plan and under the Company's Trading Dynamics 1999 Stock Plan. We advise
you that, in our opinion, when such shares have been issued and sold pursuant to
the applicable provisions of the Trading Dynamics 1998 Stock Plan and Trading
Dynamics 1999 Stock 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,
Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Ariba, Inc.:
We consent to the incorporation herein by reference of our report dated
October 18, 1999, except as to Note 8, as to which the date is December 16,
1999, relating to the consolidated financial statements of Ariba, Inc. and
subsidiaries as of September 30, 1999 and 1998 and the related consolidated
statements of operations and other comprehensive income (loss), stockholders'
equity, and cash flows for each of the years in the three-year period ended
September 30, 1999, and the related financial statement schedule, which
report appears in the September 30, 1999 annual report on Form 10-K of Ariba,
Inc.
Mountain View, California
January 28, 2000 /s/ KPMG LLP
