<PAGE>
As filed with the Securities and Exchange Commission on December 10, 1999
Registration Statement No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COMMERCE ONE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 680322810
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1600 RIVIERA, SUITE 200
WALNUT CREEK, CALIFORNIA 94596
(ADDRESS , INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------------
COMMERCEBID.COM, INC. 1999 EQUITY INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
----------------------
ROBERT M. TARKOFF
VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY
COMMERCE ONE, INC.
1600 RIVIERA, SUITE 200
WALNUT CREEK, CALIFORNIA 94596
(925) 941-6000
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
NEIL ANTHONY JEFFRIES, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF REGISTRATION
BE REGISTERED REGISTERED PER SHARE PRICE (2) FEE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock of Commerce One issuable
under CommerceBid.com, Inc's 1999
Equity Incentive Plan................... 22,634 (1) $ 1.82 (2) $ 41,194 (2) $ 10.87 (2)
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the Plan being registered pursuant to this
Registration Statement by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the receipt
of consideration which results in an increase in the number of the Registrant's
outstanding shares of Common Stock.
(2) Estimated in part pursuant to Rule 457(h) under the Securities Act, and in
part pursuant to Rule 457(c) under the Securities Act. With respect to 22,634
shares subject to outstanding options to purchase Common Stock under the Plan,
the proposed maximum offering price per share is equal to the weighted average
exercise price of $1.82 per share pursuant to Rule 457(h) under the Securities
Act.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference into this Registration
Statement the following documents and information heretofore filed with the
Commission:
1. The Registrant's Quarterly Report on Form 10-Q for the
quarter's period ended September 30, 1999.
2. The Registrant's Prospectus, filed with the Commission on
July 1, 1999, pursuant to Rule 424(b) promulgated under the Securities Act of
1933, as amended, (the "Securities Act").
3. The Registrant's Current Report on Form 8-K dated November
23, 1999, filed on November 24, 1999 including any amendment or report filed
for the purpose of updating such description.
4. The description of Registrant's Common Stock contained in the
Company's Registration Statement on Form 8-A, as declared effective by the
Commission on June 21, 1999, filed pursuant to Section 12 of the Securities
Exchange Act of 1934 (the "Exchange Act") and, any amendment or report filed for
the purpose of updating such description.
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Registration Statement on
Form S-8 and prior to the filing of a post-effective amendment that indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing 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 permits a
corporation to include in its charter documents, and in agreements between the
corporation and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
II-2
<PAGE>
Article IX of the Registrant's Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware law.
Article VI of the Registrant's Bylaws provides for the indemnification
of officers, directors and third parties acting on behalf of the Registrant if
such person acted in good faith and in a manner reasonably believed to be in and
not opposed to the best interest of the Registrant, and, in any criminal action
or proceeding, the indemnified party had no reason to believe his or her conduct
was unlawful.
The Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the Registrant's Bylaws, and intends to enter into indemnification agreements
with any new directors and executive officers in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------ -------
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1 CommerceBid.com, Inc's 1999 Equity Incentive Plan.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of PricewaterhouseCoopers, LLP, Independent Accountants.
23.3 Consent of WSGR (included in Exhibit 5.1).
24.1 Power of Attorney (see page II-5).
</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 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.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended (the "Securities Act"), each such
post-effective amendment shall be deemed to be
II-3
<PAGE>
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.
(b) 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 of 1934 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.
(c) 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 Securities and Exchange
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.
[Remainder of Page Intentionally Left Blank]
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Commerce One, Inc., 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 Walnut Creek, State of
California, on this 9th day of December, 1999.
COMMERCE ONE, INC.
By: /s/ Mark B. Hoffman
---------------------------------------
Mark B. Hoffman
President, Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose
signature appears below constitutes and appoints, Peter F. Pervere and Robert M.
Tarkoff and each of them, acting individual as his attorney-in-fact, 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 (including post-effective
amendments), and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming our signatures as they may be signed by our said
attorney to any and all amendments to the Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- ---------------------------------------------- -----------------
<S> <C> <C>
/s/ Mark B. Hoffman President, Chief Executive Officer and Chairman December 9, 1999
- ---------------------------------------- of the Board (Principal Executive Officer)
Mark B. Hoffman
/s/ Peter F. Pervere Vice President and Chief Financial Officer December 9, 1999
- ---------------------------------------- (Principal Financial Officer)
Peter F. Pervere
/s/ Asim Abdullah Director December 9, 1999
- ----------------------------------------
Asim Abdullah
/s/ John V. Balen Director December 9, 1999
- ----------------------------------------
John V. Balen
/s/ William B. Elmore Director December 9, 1999
- ----------------------------------------
William B. Elmore
/s/ Kenneth C. Gardner Director December 9, 1999
- ----------------------------------------
Kenneth C. Gardner
/s/ Thomas J. Gonzalez Director December 9, 1999
- ----------------------------------------
Thomas J. Gonzalez
II-5
<PAGE>
/s/ William J. Harding Director December 9, 1999
- ----------------------------------------
William J. Harding
/s/ David H. J. Furniss Director December 9, 1999
- ----------------------------------------
David H. J. Furniss
/s/ Noriyoshi Osumi Director December 9, 1999
- ----------------------------------------
Noriyoshi Osumi
/s/ Jay M. Tenebaum Director December 9, 1999
- ----------------------------------------
Jay M. Tenebaum
/s/ Jeffrey T. Webber Director December 9, 1999
- ----------------------------------------
Jeffrey T. Webber
</TABLE>
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------ -------
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
10.1 CommerceBid.com, Inc's 1999 Equity Incentive Plan.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.3 Consent of WSGR (included in Exhibit 5.1).
24.1 Power of Attorney (see page II-5).
</TABLE>
<PAGE>
EXHIBIT 5.1
[Wilson Sonsini Goodrich & Rosati Letterhead]
December 10, 1999
Commerce One, Inc.
1600 Riviera Avenue, Suite 200
Walnut Creek, CA 94596
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about December 10, 1999
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, an aggregate of 22,634 shares of your Common
Stock (the "Shares") reserved for issuance pursuant to the CommerceBid.com, Inc.
1999 Equity Incentive Plan (the "Plan"). As your legal counsel, we reviewed the
actions taken and proposed to be taken by you and in connection with the
proposed sale and issuance of the Shares by the Registrant under the 1999 Plan.
It is our opinion that, upon completion of the actions being taken, or
contemplated by us as your counsel to be taken by you prior to the issuance of
the Shares pursuant to the Registration Statement, the Plan, and upon completion
of the actions being taken in order to permit such transactions to be carried
out in accordance with the securities laws of the various states where required,
the Shares will be legally and 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 the use of our name wherever appearing in the
Registration Statement, including any Prospectus constituting a part thereof,
and any amendments thereto. This opinion may be incorporated by reference in any
abbreviated registration statement filed pursuant to Item E under the general
instructions to Form S-8 under the Securities Act of 1933 with respect to the
Registration Statement.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
<PAGE>
COMMERCEBID.COM, INC.
1999 EQUITY INCENTIVE PLAN
SECTION 1
PURPOSE
The purpose of the COMMERCEBID.COM, INC. 1999 Equity Incentive Plan is to
provide a means whereby COMMERCEBID.COM, INC., a Delaware corporation (the
"Corporation"), may attract able persons to remain in or to enter the employ of
the Corporation, or any Parent Corporation or Subsidiary and to provide a means
whereby those employees, directors, officers and other individuals or entities
upon whom the responsibilities of the successful administration, management,
planning and/or organization of the Corporation may rest, and whose present and
potential contributions to the welfare of the Corporation, or any Parent
Corporation or Subsidiary are of importance, can acquire and maintain stock
ownership, thereby strengthening their concern for the long-term welfare of the
Corporation. A further purpose of the Plan is to provide such employees and
individuals or entities with additional incentive and reward opportunities
designed to enhance the profitable growth of the Corporation over the long term.
Accordingly, the Plan provides for granting Common Stock, Incentive Stock
Options, options which do not constitute Incentive Stock Options, or any
combination of the foregoing, as is best suited to the circumstances of the
particular employees and individuals or entities as provided herein.
SECTION 2
DEFINITIONS
The following definitions shall be applicable during the term of the Plan
unless specifically modified by any paragraph:
(a) BOARD means the board of directors of the Corporation.
(b) CHANGE OF CONTROL VALUE means the amount determined in Clause (i),
(ii) or (iii), whichever is applicable, as follows: (i) the per
share price offered to shareholders of the Corporation in any
merger, consolidation, sale or assets or dissolution transaction,
(ii) the price per share offered to shareholders of the
Corporation in any tender offer or exchange offer whereby a
Corporate Change takes place or (iii) if a Corporate Change occurs
other than as described in Clause (i) or Clause (ii), the fair
market value per share determined by the Board as of the date
determined by the Board to be the date of cancellation and
surrender of an Option. If the consideration offered to
shareholders of the Corporation in any transaction described in
this Paragraph or Paragraphs (d) and (e) of Section 8 consists of
anything other than cash, the Board shall determine the fair cash
equivalent of the portion of the consideration offered which is
other than cash.
<PAGE>
(c) CODE means the Internal Revenue Code of 1986, as amended.
Reference in the Plan to any Section of the Code shall be deemed
to include any amendments or successor provisions to such Section
and any regulations under such Section.
(d) COMMON STOCK means the common stock of the Corporation.
(e) CORPORATION means COMMERCEBID.COM, INC., a Delaware corporation.
(f) CORPORATE CHANGE means one of the following events: (i) the
merger, consolidation or other reorganization of the Corporation
in which the outstanding Common Stock is converted into or
exchanged for a different class of securities of the Corporation,
a class of securities of any other issuer (except a Subsidiary or
Parent Corporation), cash or other property, other than a merger,
consolidation or reorganization of the Corporation which would
result in the voting stock of the Corporation outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) at least fifty-one percent (51%) of the
combined voting power of the voting stock of the Corporation or
such surviving entity outstanding immediately after such merger,
consolidation or reorganization of the Corporation; (ii) the sale,
lease or exchange of all or substantially all of the assets of the
Corporation to any other corporation or entity (except a
Subsidiary or Parent Corporation); (iii) the adoption by the
shareholders of the Corporation of a plan of liquidation and
dissolution; (iv) the acquisition (other than acquisition pursuant
to any other clause of this definition) by any person or entity,
including without limitation a "group" as contemplated by Section
13(d)(3) of the Exchange Act, of beneficial ownership, as
contemplated by such Section, of more than fifty-one percent (51%)
(based on voting power) of the Corporation's outstanding capital
stock or acquisition by a person or entity who currently has
beneficial ownership which increases such person's or entity's
beneficial ownership to fifty-one percent (51%) or more (based on
voting power) of the Corporation's outstanding capital stock.
Notwithstanding the provisions of clause (iv) above, a Corporate
Change shall not be considered to have occurred upon the
acquisition (other than acquisition pursuant to any other clause
of the preceding sentence) by any person or entity, including
without limitation a "group" as contemplated by Section 13(d)(3)
of the Exchange Act, of beneficial ownership, as contemplated by
such Section, of more than fifty-one percent (51%) (based on
voting power) of the Corporation's outstanding capital stock or
the requisite percentage to increase their ownership to fifty-one
percent (51%) resulting from a public offering of securities of
the Corporation under the Securities Act of 1933, as amended.
(g) EMPLOYEE means an individual who performs services for the
Corporation, its Parent Corporation or a Subsidiary under such
circumstances that an employer/employee relationship is deemed to
exist under Code Section 3401.
(h) EXCHANGE ACT means the Securities Exchange Act of 1934, as
amended.
-2-
<PAGE>
(i) FAIR MARKET VALUE means, as of any specified date, the closing
price of the Common Stock on the Nasdaq (or, if the Common Stock
is not listed on such exchange, such other national securities
exchange on which the Common Stock is then listed) on that date,
or if no prices are reported on that date, on the last preceding
date on which such prices of the Common Stock are so reported. If
the Common Stock is not then listed on any national securities
exchange but is traded over the counter at the time determination
of its Fair Market Value is required to be made hereunder, its
Fair Market Value shall be deemed to be equal to the average
between the reported high and low sales prices of Common Stock on
the most recent date on which Common Stock was publicly traded.
If the Common Stock is not publicly traded at the time a
determination of its value is required to be made hereunder, the
determination of its Fair Market Value shall be made by the Board
in such manner as it deems appropriate (such determination will be
made in good-faith as required by Section 422(c)(1) of the Code.
Fair Market Value also shall satisfy the requirements under
Section 260.140 of the California Code of Regulations, as
necessary to qualify for an exemption from the provisions of
Section 25110 of the California Corporations Code.
(j) GRANT means, individually or collectively, any Option or Common
Stock granted pursuant to the Plan.
(k) HOLDER means an individual who has received a Grant.
(l) INCENTIVE STOCK OPTION means an Option within the meaning of
Section 422 of the Code.
(m) OPTION means a grant made under Section 7 of the Plan that
includes both Incentive Stock Options to purchase Common Stock and
Options which do not constitute Incentive Stock Options to
purchase Common Stock.
(n) OPTION AGREEMENT means a written agreement between the Corporation
and an employee with respect to an Option.
(o) OPTIONEE means an employee, director, officer, entity or
individual who has been granted an Option.
(p) PARENT CORPORATION shall have the meaning set forth in Section
424(e) of the Code.
(q) PLAN means the COMMERCEBID.COM, INC. 1999 Equity Incentive Plan.
(r) RULE 16b-3 means Rule 16b-3 of the General Rules and Regulations
of the Securities and Exchange Commission under the Exchange Act,
as such rule is currently in effect or as hereafter modified or
amended.
(s) SUBSIDIARY means a company (whether a corporation, partnership,
joint venture or other form of entity) in which the Corporation,
or a corporation in which the Corporation owns a majority of the
shares of capital stock, directly or indirectly, owns an equity
interest of fifty percent (50%) or more, except solely with
respect
-3-
<PAGE>
to the issuance of Incentive Stock Options the term "Subsidiary"
shall have the same meaning as the term "subsidiary corporation"
as defined in Section 424(f) of the Code.
SECTION 3
EFFECTIVE DATE AND DURATION OF THE PLAN
The Plan shall be effective as of May __, 1999, the date of its adoption
by the Board, provided that the Plan is approved by the shareholders of the
Corporation within twelve (12) months before or thereafter and on or prior to
the date of the first annual meeting of shareholders of the Corporation held
subsequent to the acquisition of an equity security by a Holder hereunder for
which exemption is claimed under Rule 16b-3. Notwithstanding any provision of
the Plan or of any Option Agreement, no Option shall be exercisable and no
Common Stock may be granted prior to such shareholder approval. The Plan shall
be terminated and no further Grants or Common Stock may be granted under the
Plan after ten (10) years from the date the Plan is adopted by the Board or the
date the Plan is approved by the Corporation's shareholders, whichever is
earlier. Subject to the provisions of Section 9, the Plan shall remain in
effect until all Options granted under the Plan have been exercised or have
expired by reason of lapse of time and all restrictions imposed upon restricted
stock grants have lapsed. Any option exercised before shareholder approval is
obtained must be rescinded if shareholder approval is not obtained within twelve
(12) months before or after the Plan is adopted. Such shares shall not be
counted in determining whether such approval is granted.
SECTION 4
ADMINISTRATION
(a) ADMINISTRATION OF PLAN BY BOARD. The Plan shall be administered
by the Board in compliance with Rule 16b-3. Members of the Board
shall abstain from participating in and deciding matters which
directly affect their individual ownership interests under the
Plan.
(b) POWERS. Subject to the terms of the Plan, the Board may elect one
or several designated officers (the "Designated Officer") who
shall have authority, in their discretion, to determine which
employees, officers, directors, individuals or entities shall
receive a Grant, the time or times when such Grant shall be made,
whether Common Stock, an Incentive Stock Option or non-qualified
Option shall be granted and the number of shares of Common Stock
which may be issued under each Option. In making such
determinations, the Designated Officer may take into account the
nature of the services rendered by these individuals, their
present and potential contribution to the success of the
Corporation, a Parent Corporation or a Subsidiary, and such other
factors as the Board in its discretion shall deem relevant.
(c) ADDITIONAL POWERS. The Board shall have such additional powers as
are delegated to it by the other provisions of the Plan. Subject
to the express provisions of the Plan, the Board is authorized in
its sole discretion, exercised in a
-4-
<PAGE>
nondiscriminatory manner, to construe and interpret the Plan and
the respective agreements executed thereunder, to prescribe such
rules and regulations relating to the Plan as it may deem
advisable to carry out the Plan, and to determine the terms,
restrictions and provisions of each Grant, including such terms,
restrictions and provisions as shall be requisite in the judgment
of the Board to cause designated Options to qualify as Incentive
Stock Options, any modifications of such terms, restrictions and
provisions upon the occurrence of a Corporate Change, and to make
all other determinations necessary or advisable for administering
the Plan. The Board may correct any defect or supply any omission
or reconcile any inconsistency in any agreement relating to a
Grant in the manner and to the extent it shall deem expedient to
carry it into effect. The determination of the Board on the
matters referred to in this Section 4 shall be conclusive.
(d) COMPLIANCE WITH CODE Section 162(m). In the event the
Corporation, a Parent Corporation or a Subsidiary becomes a
"publicly-held corporation" as defined in Section 162(m)(2) of the
Code, the Corporation may establish a committee of outside
directors meeting the requirements of Code Section 162(m) to (i)
approve the grant of Options which might reasonably be anticipated
to result in the payment of employee remuneration that would
otherwise exceed the limit on employee remuneration deductible for
income tax purposes by the Corporation pursuant to Code Section
162(m) and (ii) administer the Plan. In such event, the powers
reserved to the Board in the Plan shall be exercised by such
committee. In addition, Options under the Plan shall be granted
upon satisfaction of the conditions to such grants provided
pursuant to Code Section 162(m) and any Treasury Regulations
promulgated thereunder.
SECTION 5
GRANT OF OPTIONS AND STOCK SUBJECT TO THE PLAN
(a) GRANT LIMITS. A Designated Officer may from time to time make
Grants to one or more employees, directors, officers, individuals
or entities determined by him or her to be eligible for
participation in the Plan in accordance with the provisions of
Section 6 of the Plan. The aggregate number of shares of Common
Stock that may be issued under the Plan shall not exceed one
million two hundred thousand (1,200,000) shares. Any of such
shares which remain unissued and which are not subject to
outstanding Options and/or Grants at the termination of the Plan
shall cease to be subject to the Plan but, until termination of
the Plan, the Corporation shall at all times reserve a sufficient
number of shares to meet the requirements of the Plan. Shares
shall be deemed to have been issued under the Plan only to the
extent actually issued and delivered pursuant to a Grant. To the
extent that an Option lapses or the rights of its Holder
terminate, any shares of Common Stock subject to such Option shall
again be available for the making of a Grant. The aggregate
number of shares that may be issued under the Plan shall be
subject to adjustment in the same manner as provided in Section 8
of the Plan with respect to shares of Common Stock subject to
Options then outstanding. Separate stock certificates shall be
issued by the Corporation for those shares acquired pursuant
-5-
<PAGE>
to a Grant, the exercise of an Incentive Stock Option and for
those shares acquired pursuant to the exercise of any Option
which does not constitute an Incentive Stock Option.
(b) STOCK OFFERED. The stock to be offered pursuant to a Grant may be
authorized but unissued Common Stock or Common Stock previously
issued and outstanding and reacquired by the Corporation.
SECTION 6
ELIGIBILITY
An Incentive Stock Option Grant made pursuant to the Plan may be made
only to an individual who, at the time of grant, is an employee of the
Corporation, a Parent Corporation or a Subsidiary. A Grant of an Option which
is not an Incentive Stock Option or a Grant of Common Stock may be made to an
individual who, at the time of Grant, is an employee of the Corporation, a
Parent Corporation or a Subsidiary, or to an individual who has been identified
by the Board or Designated Officer to receive a Grant due to their contribution
or service to the Corporation, including members of the Board of Directors of
the Corporation, a Parent Corporation or a Subsidiary. A Grant made pursuant to
the Plan may be made on more than one occasion to the same person, and such
Grant may include a Common Stock Grant, an Incentive Stock Option, an Option
which is not an Incentive Stock Option, or any combination thereof. Each Grant
shall be evidenced by a written instrument duly executed by or on behalf of the
Corporation.
SECTION 7
STOCK OPTION GRANTS
(a) STOCK OPTION AGREEMENT. Each Option shall be evidenced by an
Option Agreement between the Corporation and the Holder which
shall contain such terms and conditions as may be approved by the
Board and agreed upon by the Holder. The terms and conditions of
the respective Option Agreements need not be identical. Each
Option Agreement shall specify the effect of termination of
employment, total and permanent disability, retirement or death on
the exercisability of the Option. Under each Option Agreement, a
Holder shall have the right to appoint any individual or legal
entity in writing as his or her beneficiary under the Plan in the
event of his death. Such designation may be revoked in writing by
the Holder at any time and a new beneficiary may be appointed in
writing on the form provided by the Board for such purpose. In
the absence of such appointment, the beneficiary shall be the
legal representative of the Holder's estate.
(b) OPTION PERIOD. The term of each Option shall be as specified by
the Board at the date of grant and shall be stated in the Option
Agreement; provided, however, that an option may not be exercised
more than one hundred twenty (120) months from the date it is
granted.
-6-
<PAGE>
(c) LIMITATIONS ON EXERCISE OF OPTION. Any Option granted hereunder
shall be exercisable at such times and under such conditions as
determined by the Board and as shall be permissible under the
terms of the Plan, which shall be specified in the Option
Agreement evidencing the Option. An Option may not be exercised
for fractional shares.
(d) SPECIAL LIMITATIONS ON INCENTIVE STOCK OPTIONS. To the extent
that the aggregate Fair Market Value (determined at the time the
respective Incentive Stock Option is granted) of Common Stock with
respect to which Incentive Stock Options are exercisable for the
first time by an individual during any calendar year under all
incentive stock option plans of the Corporation (and any Parent
Corporation or Subsidiary) exceeds One Hundred Thousand Dollars
($100,000), plus a carryover amount (within the meaning of Section
422 of the Code), such excess Incentive Stock Options shall be
treated as Options which do not constitute Incentive Stock
Options. The Board shall determine, in accordance with applicable
provisions of the Code, Treasury Regulations and other
administrative pronouncements, which of a Holder's Incentive Stock
Options will not constitute Incentive Stock Options because of
such limitation and shall notify the Holder of such determination
as soon as practicable after such determination. No Incentive
Stock Option shall be granted to an individual if, at the time the
Option is granted, such individual owns stock possessing more than
ten percent (10%) of the total combined voting power of all
classes of stock of the Corporation or of its Parent Corporation
or a Subsidiary, within the meaning of Section 422(b)(6) of the
Code, unless (i) at the time such Option is granted the Option
price is at least one hundred ten percent (110%) of the Fair
Market Value of the Common Stock subject to the Option and (ii)
such Option by its terms is not exercisable after the expiration
of five years from the date of grant. An Incentive Stock Option
will be unexercisable for as long as there is outstanding another
Incentive Stock Option which was granted to the employee at an
earlier time.
(e) OPTION PRICE. The purchase price of Common Stock issued under
each Option shall be determined by the Board and shall be stated
in the Option Agreement, but such purchase price shall, in the
case of Incentive Stock Options, not be less than the Fair Market
Value of Common Stock subject to the Option on the date the Option
is granted, and, in the case of Options which do not constitute
Incentive Stock Options, shall not be less than eighty-five
percent (85%) of the fair value of the stock at the time the
option is granted, except that the price shall be one hundred ten
percent (110%) of the fair value in the case of any person or
entity who owns stock comprising more than ten percent (10%) of
the total combined voting power of all classes of stock of the
Corporation or its Parent Corporation or Subsidiary. Fair value
in the case of options that do not constitute Incentive Stock
Options shall have the same meaning as set forth in
Section 260.140.50 of the California Code of Regulations.
(f) OPTIONS AND RIGHTS IN SUBSTITUTION FOR STOCK OPTIONS MADE BY OTHER
CORPORATIONS. Options may be granted under the Plan from time to
time in substitution for stock options held by employees of
corporations who become, or
-7-
<PAGE>
who became prior to the effective date of the Plan, employees of
the Corporation, of any Parent Corporation or of any Subsidiary as
a result of a merger or consolidation of the employing corporation
with the Corporation, such Parent Corporation or such Subsidiary,
or the acquisition by the Corporation, a Parent Corporation or a
Subsidiary of all or a portion of the assets of the employing
corporation, or the acquisition by the Corporation, a Parent
Corporation or a Subsidiary of stock of the employing corporation
with the result that such employing corporation becomes a
Subsidiary.
(g) RESTRICTED STOCK PURCHASE AGREEMENT. Notwithstanding the
foregoing, at the discretion of the Board, the Option can be
exercised provided that the Holder shall, as a condition of such
exercise, execute and deliver the Restricted Stock Option Purchase
Agreement (the "Purchase Agreement"), pursuant to which the
Corporation shall be granted a "Repurchase Option" and "Right of
First Refusal" as to all "Shares" (as such terms are defined in
the Purchase Agreement). In addition, the Holder of Common Stock
pursuant to a Grant shall also execute and deliver the Purchase
Agreement, pursuant to which the Corporation shall be granted a
Repurchase Option and Right of First Refusal.
SECTION 8
RECAPITALIZATION OR REORGANIZATION
(a) Except as hereinafter otherwise provided, Grants shall be subject
to adjustment by the Board at its discretion as to the number and
price of shares of Common Stock in the event of changes in the
outstanding Common Stock by reason of stock dividends, stock
splits, reverse stock splits, reclassifications,
recapitalizations, reorganizations, mergers, consolidations,
combinations, exchanges or other relevant changes in
capitalization occurring after the date of the grant of any such
Options or Common Stock.
(b) The existence of the Plan and the Grants made hereunder shall not
affect in any way the right or power of the Board or the
shareholders of the Corporation to make or authorize any
adjustment, recapitalization, reorganization or other change in
the capital structure of the Corporation, a Parent Corporation or
a Subsidiary or their business, any merger or consolidation of the
Corporation, a Parent Corporation or a Subsidiary, any issue of
debt or equity securities having any priority or preference with
respect to or affecting Common Stock or the rights thereof, the
dissolution or liquidation of the Corporation, a Parent
Corporation or a Subsidiary, or any sale, lease, exchange or other
disposition of all or any part of their assets or business or any
other corporate act or proceeding.
(c) The shares with respect to which Options may be granted are shares
of Common Stock as presently constituted but if and whenever,
prior to the expiration of an Option theretofore granted, the
Corporation shall effect a subdivision or consolidation of shares
of Common Stock or the payment of a stock dividend on Common Stock
without receipt of consideration by the Corporation, the number
-8-
<PAGE>
of shares of Common Stock with respect to which such Option may
thereafter be exercised (i) in the event of an increase in the
number of outstanding shares shall be proportionately increased,
and the purchase price per share shall be proportionately reduced,
and (ii) in the event of a reduction in the number of outstanding
shares shall be proportionately reduced, and the purchase price
per share shall be proportionately increased.
(d) If the Corporation recapitalizes or otherwise changes its capital
structure, thereafter upon any exercise of an Option theretofore
granted, the Holder shall be entitled to purchase under such
Option, in lieu of the number of shares of Common Stock as to
which such Option shall then be exercisable, the number and class
of shares of stock and securities, and the cash and other property
to which the Holder would have been entitled pursuant to the terms
of the recapitalization if, immediately prior to such
recapitalization, the Holder had been the holder of such record of
the number of shares of Common Stock then covered by such Option.
(e) In the event of a Corporate Change, the Board, acting in its sole
discretion without the consent or approval of any Holder, may,
within a reasonable period of time, act to effect the following
alternatives with respect to outstanding Options which acts may
vary among individual Holders and, may be contingent upon
effectuation of the Corporate Change: (A) accelerate the time at
which Options then outstanding may be exercised so that such
options may be exercised in full for a limited period of time on
or before a specified date (before or after such Corporate Change)
fixed by the Board, after which specified date all unexercised
Options and all rights of Optionees thereunder shall terminate;
(B) require the mandatory surrender to the Corporation by selected
Holders of some or all of the outstanding Options held by such
Holders (irrespective of whether such Options are then exercisable
under the provisions of the Plan) as of a date (before or after
such Corporate Change) specified by the Board, in which event the
Board shall thereupon cancel such Options and pay to each Holder
an amount of cash per share equal to the excess, if any, of the
Change of Control Value of the shares subject to such Option over
the exercise price(s) under such Options for such shares; (C) make
such adjustments to Options then outstanding as the Board deems
appropriate to reflect such Corporate Change (provided, however,
that the Board may determine in its sole discretion that no
adjustment is necessary to Options then outstanding); (D) provide
that thereafter upon any exercise of an Option theretofore granted
the Holder shall be entitled to purchase under such Option, in
lieu of the number of shares of Common Stock as to which such
Option shall then be exercisable, the number and class of shares
of stock or other securities or property (including, without
limitation, cash) to which the Holder would have been entitled
pursuant to the terms of the agreement of merger, consolidation or
sale of assets or plan of liquidation and dissolution if,
immediately prior to such event, the Holder had been the holder of
record of the number of shares of Common Stock then covered by
such Option; or (E) cancel the Options granted if the Fair Market
Value of the Common Stock underlying the Options is below the
Option exercise price.
-9-
<PAGE>
(f) Except as herein expressly provided, issuance by the Corporation
of shares of stock of any class or securities convertible into
shares of stock of any class, for cash, property, labor or
services, upon direct sale, upon the exercise of rights or
warranty to subscribe therefore, or upon conversion of shares or
obligations of the Corporation convertible into such shares or
other securities, and in any case whether or not for fair value,
shall not affect, and no adjustment by reason thereof shall be
made with respect to, the number of shares of Common Stock subject
to Options theretofore granted, or the purchase price per share of
Common Stock subject to Options.
SECTION 9
AMENDMENT OR TERMINATION OF THE PLAN
The Board in its discretion may terminate the Plan or any Option or Grant
or alter or amend the Plan or any part thereof or any Option from time to time;
provided that no change in any Grant previously made may be made which would
impair the rights of the Holder without the consent of the Holder, and provided
further, that the Board may not, without approval of the shareholders, amend the
Plan:
(a) to increase the aggregate number of shares which may be issued
pursuant to the provisions of the Plan on exercise or surrender of
Options or upon Grants;
(b) to change the minimum Option exercise price;
(c) to change the class of employees eligible to receive Grants or
increase materially the benefits accruing to employees under the
Plan;
(d) to extend the maximum period during which Grants may be made under
the Plan;
(e) to modify materially the requirements as to eligibility for
participation in the Plan; or
(f) to decrease any authority granted to the Board hereunder in
contravention of Rule 16b-3.
SECTION 10
OTHER
(a) NO RIGHT TO A GRANT. Neither the adoption of the Plan nor any
action of the Board or Designated Officer shall be deemed to give
an employee, director or consultant any right to be granted an
Option to purchase Common Stock, to receive a Grant or to any
other rights hereunder except as may be evidenced by an Option
Agreement or Purchase Agreement, as the case may be, duly executed
on behalf of the Corporation, and then only to the extent of and
on the terms and conditions expressly set forth therein. The Plan
shall be unfunded. The Corporation shall
-10-
<PAGE>
not be required to establish any special or separate fund or to
make any other segregation of funds or assets to assure the
payment of any Grant.
(b) NO EMPLOYMENT RIGHTS CONFERRED. Nothing contained in the Plan or
in any Grant made hereunder shall (i) confer upon any employee,
director or consultant any right with respect to continuation of
employment or engagement with the Corporation or any Parent
Corporation or Subsidiary, or (ii) interfere in any way with the
right of the Corporation or any Parent Corporation or Subsidiary
to terminate his or her employment or engagement at any time.
(c) OTHER LAWS; WITHHOLDING. The Corporation shall not be obligated
to issue any Common Stock pursuant to any Grant made under the
Plan at any time when the offering of the shares covered by such
Grant has not been registered (or exempted) under the Securities
Act of 1933, as amended, and such other state and federal laws,
rules or regulations as the Corporation or the Board deems
applicable and, in the opinion of legal counsel for the
Corporation, there is no exemption from the registration
requirements of such laws, rules or regulations available for the
issuance and sale of such shares. No fractional shares of Common
Stock shall be delivered, nor shall any cash in lieu of fractional
shares be paid. The Corporation shall have the right to deduct in
connection with all Grants any taxes required by law to be
withheld and to require any payments necessary to enable it to
satisfy its withholding obligations. The Board may permit the
Holder of a Grant to elect to surrender, or authorize the
Corporation to withhold shares of Common Stock (valued at their
Fair Market Value on the date of surrender or withholding of such
shares) in satisfaction of the Corporation's withholding
obligation, subject to such restrictions as the Board deems
necessary to satisfy the requirements of Rule 16b-3.
(d) NO RESTRICTION OF CORPORATE ACTION. Nothing contained in the Plan
shall be construed to prevent the Corporation or any Parent
Corporation or Subsidiary from taking any corporate action which
is deemed by the Corporation or such Parent Corporation or
Subsidiary to be appropriate or in its best interest, whether or
not such action would have an adverse effect on the Plan or any
Grant made under the Plan. No employee, beneficiary or other
person shall have any claim against the Corporation or any Parent
Corporation or Subsidiary as a result of such action.
(e) RESTRICTIONS ON TRANSFER. A Grant shall not be transferable
otherwise than by will or the laws of descent and distribution and
shall be exercisable during the lifetime of the Holder only by
such Holder or the Holder's guardian or legal representative.
(f) EFFECT OF DEATH, DISABILITY OR TERMINATION OF EMPLOYMENT. The
Option Agreement or other written instrument evidencing a Grant
shall specify the effect of the death, disability or termination
of employment of the Holder on the Grant.
-11-
<PAGE>
(g) INFORMATION TO EMPLOYEES. Holders under the Plan shall receive
financial statements annually regarding the Corporation during the
period the options are outstanding.
(h) RULE 16b-3. It is intended that the Plan and any grant of a Grant
made to a person subject to Section 16 of the Exchange Act meet
all of the requirements of Rule 16b-3. If any provisions of the
Plan or any such Grant would disqualify the Plan or such Grant
hereunder, or would otherwise not comply with Rule 16b-3, such
provision or Grant shall be construed or deemed amended to conform
to Rule 16b-3.
(i) GOVERNING LAW. The Plan shall by construed in accordance with the
laws of the State of California and all applicable federal law.
The securities issued hereunder shall be governed by and in
accordance with the Corporate Securities Laws of the State of
California.
ADOPTED BY THE BOARD OF DIRECTORS AS OF MAY __, 1999.
APPROVED BY THE SHAREHOLDERS AS OF MAY __, 1999.
-12-
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the CommerceBid.com, Inc. 1999 Equity Incentive Plan
of Commerce One, Inc. of our report dated March 5, 1999 (except for Note 8,
as to which the date is June 25, 1999) with respect to the consolidated
financial statements and financial statement schedule of Commerce One, Inc.
as of December 31, 1997 and 1998 and for each of the three years in the
period ending December 31, 1998 and our report dated March 5, 1999 with
respect to the financial statements of VEO Systems, Inc. as of December 31,
1998 and for the year then ended, included in the Registration Statement
(Form S-1, No. 333-76987), as amended, and the related Prospectus of Commerce
One, Inc., filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Walnut Creek, California
December 8, 1999
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 8, 1998, except for the last
paragraph of Note 10, as to which the date is August 21, 1998, relating to
the financial statements of VEO Systems, Inc., which appear in Form S-1 (File
No. 333-76987) of Commerce One, Inc.
/s/ PRICEWATERHOUSECOOPERS LLP
San Jose, California
December 13, 1999
